The role of an executor in a Will is of utmost importance. Given the person who has passed has put all of their trust in the person they’ve nominated to take care of a lifetime’s worth of assets accordingly, there’s a lot of responsibility involved. With that said, what actually are those responsibilities, exactly? And how does one go about even beginning the process of taking on such a role?
Grant of Probate
Depending on the nature of assets belonging to the deceased, such as the amount of money in their bank account (generally anything above $50,000) and whether the assets of the deceased are held solely in their name, a ‘Grant of Probate’ will need to be applied for at the Supreme court of NSW. This is a court order that validates a deceased person’s Will, which gives the executor permission to administer the estate accordingly. This application must be done within 6 months of the person’s death so appointing an expert lawyer from the get-go will ensure the process will be as smooth and painless as possible.
Executor Responsibilities
Once the lawyer has been appointed, the job of the executor can be quite straight-forward, particularly if there aren’t any disputes to the Will (more on that below). The lawyer will make the various enquiries with the relevant authorities and gather the information required in making the application. So, when applying for probate, here’s what the Courts will need submitted:
- The most current and original Will.
- A death certificate from the state registry.
- A summons for probate (the official probate application).
- An executor affidavit.
- An inventory of all of the assets and property belonging to the deceased.
- Other affidavits depending on the estate.
- The filing fee.
Of course, all of the above can be organised with your lawyer.
What happens if there are disputes?
There are several reasons as to why a Will may be disputed – a beneficiary might feel they’ve been left out or deserve more than they’ve been given; a family member might feel like the deceased wasn’t of sound mind when they wrote the Will or that the deceased was somehow bullied into nominating the executor (undue influence) etc. In any case, if a Will is challenged, the executor is the one who gets sued and has to act as a defendant against the action. In these circumstances, here’s what needs to be done:
- As much evidence as possible needs to be gathered to prove why being nominated the executor is valid and also why whomever is contesting the Will has no grounds.
- Gathering information to reply to affidavits from parties claiming.
- All assets need to be held onto until the dispute is completely resolved.
Having to deal with the passing of a loved one is an extremely emotional and difficult thing to process as it is but having to then deal with the legal proceedings that follow can be an unwelcome burden. And if you’ve been nominated executor in their Will - especially if it’s being contested - it cannot be stressed enough how important it is to have someone who is highly experienced in the field, assisting you with what can be quite the stressful legal battle.
At Taylor & Scott Lawyers, we’re not just experts in estate law but also experts in empathy. We truly understand the difficulty that comes with the grieving process so will ensure the smoothest legal proceedings take place – because we care for you.
