Simone Lawson
When an individual passes away, several legal procedures must be followed, and the question of who has the authority to represent the deceased and manage their estate arises. The legal representative of the deceased is typically responsible for handling their tax affairs, interpreting their will, and managing their estate. In some cases, the deceased may have appointed a legal personal representative (LPR) or executor in their will, who then has the authority to act on their behalf. However, if there is no will or court-appointed representative, the next of kin or a legally appointed administrator may take on this role. The specific laws and procedures can vary depending on the jurisdiction, and it is always advisable to seek professional legal advice to ensure compliance with the relevant laws.
| Characteristics | Values |
|---|---|
| Who can represent a deceased estate? | A person who is legally authorised to represent the deceased, also known as an LPR, or a personal representative. |
| Who can be an LPR? | The executor named in the will, or an administrator appointed by the court (which can be the next of kin). There can be more than one LPR for an estate. |
| What is required for tax purposes? | For an executor – grant of probate from a supreme court; for another person – grant of letters of administration from a supreme court, appointing them as administrator of the estate. |
| What if there is no will? | Certain individuals can apply through the courts to administer the estate. If there is no court-appointed representative, an individual can request to be appointed as a representative for tax matters by filling out a specific form. |
| What is a personal representative? | An individual chosen to administer the estate of a deceased person, either designated by the decedent or by a court. They are also known as executors and have a fiduciary duty to act in good faith and in the best interests of the estate's beneficiaries. |
| What does a personal representative do? | They perform tasks such as arranging funeral services, notifying those entitled to part of the estate's property, determining the value of the estate, handling payments of debts and expenses, assessing tax liabilities, and distributing estate property according to the will. |
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What You'll Learn
Who can be a legal representative
A legal representative, also known as a legal personal representative (LPR) or personal representative, is the individual chosen to administer the estate of a deceased person. This person is usually the executor named in the will or an administrator appointed by the court, often a close relative or friend of the deceased. In some cases, there can be more than one LPR for an estate.
To be recognised as the authorised LPR and have unrestricted access to the deceased's information and assets, an executor will need a grant of probate from a supreme court. Another person, such as the next of kin, will need a grant of letters of administration from a supreme court, appointing them as the administrator of the estate.
If there is no will or the deceased died intestate (without a will), a personal representative will serve as the executor of the intestate estate. Certain individuals can apply through the courts to administer the estate, and the court will appoint an administrator. In Canada, for example, an individual can request to be appointed as a representative for CRA matters by filling out Form RC552.
Personal representatives are fiduciaries with a responsibility to act in the best interests of an estate and its beneficiaries. They have a duty to act in good faith, with honesty, loyalty, and candour. They typically perform tasks such as arranging funeral services, notifying those who are entitled to part of the estate's property, handling payments of debts and expenses, and assessing tax liabilities.
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What are the duties of a legal representative
A legal representative is a person who has the legal authority to act on behalf of someone else. This person can make decisions and take actions that affect the legal rights and responsibilities of another person or entity. For example, a company's legal representative might negotiate settlements, represent the company in court, sign documents, and make decisions on behalf of the business.
In the context of an individual, a legal representative is typically appointed to manage their affairs when they are no longer capable of doing so themselves, or after they have passed away. When planning their estate, an individual will appoint a legal representative, also known as a personal representative, to manage their financial affairs (power of attorney), health care issues (Advance Directive for Healthcare), and to carry out their final wishes (Last Will). The personal representative will collect probate assets, determine claims, settle the estate, and distribute assets to the named heirs. This person should be trustworthy, responsible, and capable of acting in the individual's best interest.
In the case of a deceased individual, the legal representative is typically the executor named in the will, responsible for administering the estate and ensuring that tax returns are filed. If there is no will or executor named, certain individuals, such as the next of kin, can apply through the courts to be appointed as the administrator of the estate. This person will then have the authority to represent the deceased and distribute assets to the beneficiaries.
In some cases, a legal representative may be required for a company or business. For companies operating in certain countries, such as Spain, a legal representative is obligatory and facilitates the buying and selling process. This representative can be a person or a legal entity and carries out roles such as establishing the company, hiring staff, and obtaining necessary registrations and certifications.
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How to become a legal representative
A legal representative, also known as a Personal Representative (PR) or an executor, is responsible for handling the property and estate of a deceased individual. This includes managing their assets and liabilities, such as filing tax returns and settling any outstanding debts.
To become a legal representative, here are the steps you need to follow:
Identify the Executor:
The first step is to identify the individual who has been named as the executor in the deceased person's will. The executor is typically the first choice for legal representation and is responsible for settling the estate.
Court Appointment:
If there is no will or the executor is unable or unwilling to act, certain individuals can apply to the probate court to become the legal representative. The court will consider the priority and eligibility of the applicant and may appoint a Personal Representative (PR). The court generally prefers to appoint someone nominated by the deceased in their will or a close relative.
Meet Eligibility Criteria:
To become a legal representative, you must meet certain eligibility criteria. The court will not appoint someone with a criminal record, minors, or lawyers who have been expelled or resigned during disciplinary proceedings. In some cases, the court may require the proposed PR to have a bond, which is an insurance policy protecting the assets in case of any wrongdoing.
Notify Relevant Authorities:
Once appointed as the legal representative, you must notify relevant authorities, such as the Australian Taxation Office (ATO) or the Canada Revenue Agency (CRA). Submit the necessary documents to prove your appointment and provide updated contact information for the estate.
Gain Access to Information:
As a legal representative, you will need access to the deceased individual's records, including tax and financial information. Register for online access by providing the necessary documentation and obtaining a Representative Identifier (RepID). You can then send documents and access the deceased's tax records online.
It is important to note that the process may vary slightly depending on the country and specific legal requirements. Additionally, the legal representative can authorize additional representatives, such as accountants or lawyers, to assist in administering the estate.
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How to remove a legal representative
A legal representative, also known as a personal representative or executor, is the individual chosen to administer the estate of a deceased person. They are responsible for the administration of the estate, including managing the deceased's assets and liabilities, and ensuring that tax returns are filed.
To remove a legal representative, one can petition the court to remove the personal representative or request supervised administration. An interested party can also petition the court for a temporary restraining order to stop the personal representative from performing a specific action.
In the case of a deceased individual, the legal representative is typically the executor named in the will. If there is no will or the executor is not named, certain individuals can apply to the courts to administer the estate. This typically involves submitting a request to the relevant provincial or territorial government, depending on the residence of the deceased.
For tax purposes, the legal representative or personal representative is responsible for filing tax returns and resolving any outstanding balances with the relevant tax authorities. To gain access to the tax records of the deceased, the legal representative must submit documents notifying the tax authorities of their role. This typically involves registering for online access and providing updated contact information for the estate.
It is important to note that the specific procedures for removing a legal representative may vary depending on the jurisdiction and the specific circumstances of the case. Therefore, it is always advisable to seek legal advice or refer to the relevant government websites for the most accurate and up-to-date information.
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What to do when there is no will
The authority to represent a deceased individual is usually granted to the executor named in the will, or an administrator appointed by the court, who can be the next of kin. This person is known as the LPR, or legal practitioner/representative, and they are responsible for the administration of the deceased's estate, including filing tax returns and settling any outstanding debts.
Dying without a will can cause a lot of problems for the deceased's family members. A will is a way for an individual to dictate what happens to their assets after death. Without one, the individual's assets may fall into the wrong hands.
If someone dies without a will, they are said to have died "intestate". In this case, certain individuals can apply through the courts to administer the estate. The process will vary depending on the state or territory in which the deceased lived, and each state has its own intestacy laws. In general, the spouse has first priority to the deceased's assets, followed by children, grandchildren, parents, and siblings. If there are no close relatives, cousins may inherit the estate, and if heirs cannot be found, the estate will escheat to the state.
In some states, like California, if the deceased was married with children from a previous partner, their estate will be divided in half, with one half going to the children and the other to the surviving spouse. In other states, like Tennessee, the surviving spouse is given one-third of the estate, with the children receiving the rest.
In states that recognize domestic partnerships, such as Connecticut, Hawaii, Nevada, Oregon, Vermont, and Washington, a registered domestic partner will inherit in the same way as a married spouse. However, in states that do not recognize domestic partnerships, cohabiting couples may not inherit property from one another without a will.
To get online access to a deceased person's tax records, you will need to register for "Represent a Client". This will allow you to authorize additional representatives, such as accountants or lawyers, to access the records. If you do not want online access, you can send documents by mail or fax.
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Frequently asked questions
An authorized representative is someone who can view, get information about, and update the tax information of the deceased. This can be an accountant, a lawyer, or a legal personal representative (LPR).
To become an authorized representative, you can request to be appointed as one by filling out the relevant forms and mailing them to the relevant tax authority.
If there is no will, the Rules of Intestacy are followed. These rules identify the next of kin in charge of dealing with the estate and how the estate should be divided. The administrator is the name given to the legal next of kin who has completed the process of obtaining a Letter of Administration (LOA).
