It can be an honour to play a central role in finalising the affairs of a beloved family member or friend by being nominated as an Executor in their Will. If you have been asked to step into this role you may be wondering:
Ideally the job has been made easy by some forward planning on the part of the Will maker, but that’s not always the case and administration of an Estate can become emotionally charged, time-consuming and difficult. It’s important to consider this possibility when agreeing to act as an Executor.
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.
In this post we cover the important qualities of an Executor and give you a summary of an Executor’s key functions.
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.
You can also choose trained professionals, like the team at Safewill Estates, who are prepared for the work required to act as your Executor, so that you don’t have to burden family or friends with the task.
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.
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 part of an Executor’s role includes identifying the property and assets of the Estate and having them valued & insured if needed, collecting money owed to the Will maker, lodging a final tax return and paying any outstanding debts (including any tax owed to the ATO).
Before an Executor can carry out their duties they may need to apply for a Grant of Probate from the court in their state or territory. 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 in the Estate to Beneficiaries according to the terms of the Will. This may involve closing bank accounts and selling or transferring property so that Beneficiaries can receive what they are entitled to.
The two key rights of an Executor are the right to be compensated for any costs you incur (unless you are also a Beneficiary of the Will) and the right of refusal to act as an Executor if you are unable or unwilling to perform your duties.
The main risk in acting as Executor is 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.
Examples of common risk areas include:
If you would like some any additional information on this point, please do not hesitate to reach out to our affiliate law firm, Safewill Legal.
Safewill is estate planning made easy
Safewill was designed to help Australians write a Will easily and affordably. 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.
Apply for Probate with Safewill Legal & simplify your journey as an executor.