When creating their will, a person (testator/testatrix) will often appoint someone as their Executor. It is the duty of the executor to administer the deceased’s estate in accordance with their will.
The Executor may be anyone over the age of 18, but is generally someone close to the testator such as a spouse, an adult child or close relative or good friend or business partner. In most cases they will be a beneficiary in the will. While some testators discuss the appointment with their chosen nominee, many Executors find out they have been named as executor upon the death of their loved one or friend. As a result, many suddenly find themselves in a role with no experience and little prior knowledge.
We outline the major responsibilities of an Executor below, plus additional information that will be helpful for those assuming such a role. If you have recently been appointed as an Executor this blog will serve as a ‘crash course’ in your new position, while those who may one day find themselves in this role will be well prepared for their duties.
What are the Responsibilities of an Executor?
Arranging the deceased’s funeral may be the first job for a newly appointed executor. Normally these arrangements are organised along with the family, but the executor will need to ensure any instructions outlined in the will are carried out. An executor should also make sure the deceased’s estate will cover the cost of the funeral arrangements. If estate funds do not cover the funeral cost the executor will be liable to pay the outstanding amount. (The funeral director will also order the Death certificate which is needed for probate).
Obtain the original will and ascertaining assets of the deceased
It is the responsibility of the executor to obtain the original will in order to carry out their duties. The will may be in the care of a solicitor, another family member, or it may be necessary to locate the will in the deceased’s personal possessions. Usually an Executor will appoint the deceased’s solicitor to attend to the running around and ensure that the correct processes are followed:
The solicitor for the estate with the executor will locate the relevant assets of the estate and write to the relevant authorities to put authorities on notice that probate is to be entered.
File an application for probate if necessary
Depending on the assets of the estate Probate will need to be lodged. This is usually the case if the deceased had assets solely in their name. With joint assets other procedures may be required.
If the validity of the will is challenged then the Executor will need to apply for probate. This means the validity of the will is tested in court and the Executor will need to deal with the challenge prior to distributing the Estate.
Secure assets of the estate
Once probate is granted and the relevant notice periods have lapsed then the Solicitor for the estate will, with the Executor, attend to the relevant authorities to close accounts and transfer assets in accordance with the will.
Before the estate can be distributed to beneficiaries, the deceased’s outstanding debts must be paid. It is the responsibility of the Executor to ensure these debts are paid, and in the correct order according to the will or given law.
Lodge tax returns for the deceased
Income tax returns for the deceased person and their estate may need to be lodged by the Executor. The assistance of an accountant may be necessary.
Where a will provides for the establishment of one or more trusts, the task must be carried out by the Executor.
Are you Obligated?
It is a big responsibility to assume the role of an Executor. If named as the Executor of a will you are not obliged to accept. In some circumstances a nominated person may choose not to accept or they may be unable to take on the role. In this case the nominated person would need to formally renounce the appointment. If this occurs then the position will be given to a substitute Executor, if named. Where no substitute Executor is named, an administrator will be allocated according to the Succession Act 2006. This person is usually a major beneficiary and performs the same role as the Executor.
Who Can Assist You in this Role?
Undertaking the role of Executor is far from a simple task. It requires time, understanding and a great deal of paperwork. Even simple estates with clear instruction can be complicated for a novice. If dealing with a large estate that includes a business or disputes between beneficiaries, the job is only more complicated. Additionally, because the Executor of the will is responsible for any losses that occur as a result of an action, they can be held liable for those losses by a beneficiary or creditor.
If appointed as Executor, you needn’t handle the pressure and long list of responsibilities alone. You are entitled to seek legal assistance and this is usually paid for by the deceased’s estate.
A legal professional can help you fulfill your duties as an Executor. They can: provide assistance with paperwork and potential court proceedings; offer advice and direction; and ensure tasks are carried out in a correct and timely manner ensuring you will not be held liable for any estate losses.
It is always advisable to seek legal advice if you have been appointed Executor. For more information on how Taylor & Scott Lawyers can help you in your role as will Executor please contact us on 1800 600 664 or complete the contact form to arrange a consultation.
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