It can be an honour to help make end-of-life wishes a reality, especially for a loved one. Handing all the assets and paperwork of death can be as much a part of this mission as things like funeral planning and emotional support. And, as the executor of a Will, you are responsible for making this all happen.
Aside from managing the estate, distributing estate assets to all the beneficiaries, and carrying out funeral plans, you're also personally liable to ensure the job's done in a reasonable timeframe. This includes going through Supreme Court proceedings, dealing with paperwork, and generally making informed decisions.
Put shortly, as the legal personal representative for the deceased, you're the person assigned to carry out the specific instructions left in this person's Will.
This can be immensely rewarding and important work, but it's also a lot of responsibility- with the need to handle real estate, navigate probate and distribute and manage remaining assets becoming all consuming.
If you have been asked to step into this role, you may be wondering:
What are your rights and responsibilities as an Executor?
What steps do you need to take to discharge your duty and make sure the Estate is properly dealt with?
In an ideal world, the answers to these questions are made easy by some forward planning on the part of the Will-maker. In reality, that's not always the case. On top of tax returns, funeral arrangements admin, death certificate admin, managing business interests and the legal processes required to administer the estate- the role can also be incredibly emotional.
It takes time, it can spark family disputes, and it can involve navigating unfamiliar processes required in legal action or finance management. For this reason, it's important to consider your capacity when agreeing to act as an Executor for a deceased person's estate.
Also, as inheritance laws vary across Australian states and territories, it's a good move to consult a legal professional for further advice on your particular situation.
To help get more informed on what administration of the estate includes, as well as how best to act as executor, we've gone a bit deeper on the details and ongoing administration needs below.
Anyone over 18 who has mental capacity can be an Executor – they could be a family member, friend, business associate or professional advisor.
Ideally your executor should be someone who's confident, competent and caring and will have the best interests of all Beneficiaries at heart. For this reason, if you decide to appoint a Beneficiary to the role of Executor, it can be wise to appoint more than one Executor to administer the estate.
You can also choose trained professionals, like the team at Safewill Legal, who are prepared for the work required to act as your Executor.
This can prevent your family or friends having to take on an overwhelming number of new responsibilities in administering the estate and associated liabilities, real estate and assets.
An Executor's main responsibility is to act as the trusted representative of the Will maker and to carry out the instructions in the Will in an accurate and timely way. This involves being responsible for the following duties:
In most cases instructions on the location of a Will and other relevant documents will have already been given to the Executor.
In some situations an Executor may be called on to locate and produce a copy of the final Will. In outlining the wishes of the deceased for how their assets and property should be handled after death, the Will provides a roadmap for how the executor should act.
Executors often organise the funeral or memorial service with family and friends and make sure the Will maker is remembered according to the instructions in the Will. This can represent a personal part of the executors duties, and is a key reason why many choose to appoint a close family member or friend.
This part of an Executor's role includes identifying the property and assets of the deceased's Estate and having them valued & insured if needed, collecting money owed to the deceased person, lodging a final tax return and paying any outstanding debts (including any tax owed to the ATO).
Before an Executor can begin administering the deceased estate, they may need to obtain authority via a probate application in the supreme court. A Grant of Probate is an approval given by the Court which formally provides the Executor with authority to carry out the instructions in the Will.
Our affiliate law firm, Safewill Legal can assist you with applying for a Grant of Probate.
An Executor is responsible for distributing the assets after they pay debts on the estate. After receiving a grant of probate from the supreme court, the executor will transfer cash, sell property and distribute the other assets to all beneficiaries.
This may involve closing bank accounts and selling or transferring property so that Beneficiaries can receive what they are entitled to. Before this happens, the executor must also pay debts, and deal with Australian tax office proceedings.
Executors named in a Will have two main rights. Firstly, they have the right to be paid compensation for any costs they incur, unless the executor is also a beneficiary. Secondly, any person named can refuse to act as an Executor if they are unable or unwilling to perform the duties.
The main risk in acting as Executor is you may be held liable if you make an error in the administration of the estate, and expose the estate to a loss. In this situation, the Executor may be personally liable for the loss if it can be shown that they were careless in carrying out their duties.
Where the Executor does not insure any assets of the estate and they are damaged, burnt down, stolen or destroyed in the time after the death of the Will maker.
Where the Executor distributes the assets of the estate before they pay the debts of the Estate
Where the Executor takes too long to finalise the administration of the estate, such that the beneficiaries are left waiting to receive their inheritance, long after probate was granted.
If you would like any additional information on this point, please do not hesitate to reach out to our affiliate law firm, Safewill Legal.
Safewill was designed to help make estate planning easy and affordable, for you and your family members. Appointing an Executor is one of the steps we guide you through when you set your Will up on our easy-to-use online platform.