What are the duties of an executor of a Will?

What is the first thing the executor of a Will should do?

Before someone dies they will nominate an individual to enforce their Will. This person is known as the executor. It is their responsibility to administer the deceased estate. Before they start the administration process the first thing they will need to do is locate the Will. The deceased may have told the executor where to find the Will before they died. It should be stored in a safe place perhaps among personal documents, in a filing cabinet, in a safe deposit box, or with the deceased’s solicitor.

What are the duties and responsibilities of an executor?

The main duty of an executor is to validate the deceased’s assets, pay off any debts including funeral expenses and administrative fees and then distribute the remainder of the estate to beneficiaries. Their responsibilities largely fall within three categories: administration, probate and distribution and financial.

Administration:

• Locate the will

• Organise and carry out funeral arrangements

• Obtain a death certificate

• Notify utility providers and financial institutions

• Redirect post and contact financial institutions to put a halt on any direct debits

• Find and contact beneficiaries, and keep them updated on the estate administration process

Financial:

• Contact financial institutions, service providers and government agencies to validate the deceased’s assets and liabilities

• Create an inventory of the estate including cash, real estate and securities, insurance policies, superannuation, outstanding work entitlements and any personal and household effects

• Keep records of any financial and administrative transactions incurred during the estate administration process

• Provide a distribution report to each beneficiary

Probate and Distribution:

• Gather important documents and fill out the paperwork to apply for a grant of probate with the Supreme Court

• Pay off any debts, taxes and other expenses incurred for burial or funeral arrangements

• Distribute the remainder of the estate to beneficiaries including paying legacies, establishing testamentary trusts and bequeathing gifts or donations

• Prepare account and tax information for beneficiaries after probate

Are there any limitations to an executor’s responsibilities?

By now you may be thinking an executor has unlimited control when it comes to administering an estate. While enforcing a Will does enable certain powers, it doesn’t mean you can do anything you want. The following list highlights some of the tasks an executor is not legally allowed to do as part of their duties.

• Pay their own bills or debts out of a deceased estate

• Assign themselves as a beneficiary to the Will

• Modify or sign the will on behalf of the testator (particularly if it was not signed before the Will-maker’s death)

• Change of revoke the beneficiaries listed in the Will

• Stop people from contesting the Will

• Coerce the testator to change their Will

• Execute the Will before the testator’s death

If the executor abuses their duties or fails to act according to the Will-maker’s wishes their responsibilities can be rescinded. A beneficiary can contact the Supreme Court to raise their concerns and apply to have the executor revoked or replaced. In this situation the court may step in and take over the role of the executor instead of choosing a new one.

Does an executor have access to bank accounts?

The executor of a Will does not have automatic access to the deceased’s bank accounts. Once the Will-maker dies the executor will need to contact the relevant financial institutions to be able to access funds so they can pay off debts and arrange the transfer of assets.

Most financial institutions have a process in place to deal with deceased estates. The executor will need to fill out paperwork, including the deceased customer notification form, to confirm the identity of the person who has died and get authorisation to access the funds. The bank will need to see original versions or certified copies of the wWll and any deeds or trusts the deceased held, as well as the grant of probate before they approve access.

In some situations, the executor may need to set up a bank account in the name of the estate in order to fulfil their duties. Once this is done funds can be transferred to the new account to pay off funeral and administrative expenses, outstanding debts and then distribute the remaining assets to beneficiaries.

Disclaimer: The information contained in this guide is not intended to be a substitute for legal advice but as a basic guide to the application process. If you have concerns or queries you should consult a legal professional about your specific circumstances.