Pursuant to the Succession Act 1981 (Qld), the Personal Representative of an estate has an obligation to all beneficiaries of an estate, to administer the estate in accordance with the law and “as soon as may be”.
If a Personal Representative fails to properly distribute an estate to all beneficiaries named in a Will or pursuant to the rules of intestacy (when someone dies without a valid Will), the Personal Representative is personally liable to any beneficiaries who suffer damages as a result of the Personal Representative’s failure.
With so many obligations imposed on the Personal Representative, what are they to do when a named beneficiary of a Will, or pursuant to the rules of intestacy, cannot be located?
In July 2017 Bridge Brideaux answered the above question when they acted for a client who was prevented from distributing an estate because estranged family members could not be located.
Bridge Brideaux had undertaken extensive searches to locate the estranged family members to no avail and so they filed an application for a “Benjamin Order” in the Supreme Court of Queensland.
A Benjamin Order, when granted by the Court, allows a Personal Representative to administer the estate in circumstances when it is uncertain whether a beneficiary is still alive. In this particular case, because the Court was satisfied that Bridge Brideaux and their client had undertaken sufficient searches for the estranged family members, an Order was made that the estate could be distributed to the known beneficiary, on the basis that the estranged family members had predeceased the deceased. The Benjamin Order discharged any further personal liability of the Personal Representative to those estranged family members.
Without a Benjamin Order, the Personal Representative would have been indefinitely prevented from administering the estate, or would have been personally liable to the estranged family members if they had ever been located and the estate had already been administered.
If you have any questions regarding estate planning or estate administration, contact Bridge Brideaux Solicitors on 07 3847 7770.
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