Enduring POA v’s Executor of an Estate
An Enduring Power of Attorney
An enduring power of attorney is a legal document which allows you (the donor) to appoint a person or agency of your choice to make financial and/or property decisions on your behalf. This person or agency (the donee) becomes your attorney.
By appointing an attorney, your property and financial affairs can continue to be managed in your best interests, even if you become unable to manage them yourself.
You can authorise your attorney to make property and financial decisions on your behalf:
a) At anytime, including while you still have legal capacity
b) Only if you lose legal capacity
A Power of Attorney is different to an enduring power of attorney as a power of attorney loses the power to act if (b) occurs.
In order to sell a property using an enduring power of attorney, Landgate require the original legal document to be lodged with them within 3 months. This is within 3 months of the enduring power of attorney document being created.
If you, or a family member come under either (a) or (b) and intend on selling a property then it would be in your/their best interest to lodge the documents with Landgate.
If the document has not been lodged and the registered proprietor has lost capacity at the time of the property transaction, then the attorney will be required to complete a Statutory Declaration stating the enduring power of attorney is still in effect.
Your settlement agent can take care of this on your behalf at any time. Please note that there is an additional Landgate fee.
Further information can be found on the Landgate website: Landgate – Enduring Power of Attorney
Executor of an Estate
Being chosen as an executor should not be taken lightly as it is a privilege and also a large responsibility.
An executor is legally responsible for sorting out the finances of the person who has passed away, generally making sure debts and taxes are paid and what remains is properly disbursed to the beneficiaries of the will.
There are a number of duties and responsibilities of an Executor;
- Notify all beneficiaries named in the will
- Obtain a copy of the will and file it with the local probate office
- Apply and receive a grant of probate
- Notify banks, credit card companies, and government agencies
- Complete income tax returns and gain a clearance from the ATO
- Manage the property or goods left in the will
- Value the estate and keep a list of the valuations. The estate includes all:
- Cash
- Business interests
- Personal effects
- Securities
- Debts due
- Debts owing
- Sale of Property
- Divide the estate
When it comes to Real Estate transactions the Executor of the Will or Executor of the Estate will need to engage a settlement agent, preferably prior to selling or at the time of accepting an offer to transfer the property/properties into their name as executor of the estate.
They will need to present the original probate and title and the settlement agent will carry out the appropriate paperwork.
Once this has been carried out the title is then ready to transfer and any proceeds from the sale are to be deposited into an account in the name of the Estate allowing the executor to carry out the about duties.
Further information can be found in this guide: Landgate-How-To-Guide-Personal-Representative-V3.pdf
Selling & Settling Your Property
To discuss your Settlement needs call Kate at Clarity Conveyancing on 9791 2722.
