The Executor named in a Will is the person responsible for administering an estate after someone has passed away, and if necessary, must apply for a Grant of Probate with the Supreme Court before they can do so. When acting in their capacity as Executor, they must identify all assets and liabilities of the deceased, and eventually distribute the estate to the beneficiaries named in the Will.
It is common that, when writing a Will, people appoint a trusted family member or loved one as the Executor of their Will. This can often be a spouse, family friend, parent, or sibling. If only one Executor is appointed, then that person acts as Executor alone. If more than one Executor is appointed, then the Executors must act jointly and must agree with one another when making decisions regarding the estate.
Ultimately, who a Will-writer chooses to appoint as their Executor is entirely their decision, and there are very few limitations on who can be appointed to this position.
To find out more about the role and responsibilities of an Executor, read on to cover:
There are a wide variety of tasks that must be completed by an Executor following the death of a loved one, so the opportunities for disagreements and disputes are vast.
For example, the Executor is the person with the authority to make funeral and burial arrangements. If the deceased person did not express any preference for the disposal of their body, or how their life should be celebrated, the Executors may be unable to make the joint decision to bury or cremate, or to have a religious or non-religious funeral service.
Executors are also responsible for arranging the distribution and sale of estate assets, such as property and valuable chattels (such as motor vehicles, jewelry, or antique furniture). There may be arguments over who to distribute personal effects to, when to sell assets, the value of the asset, or whether a beneficiary should be given the first option to purchase the asset from the estate.
In extreme cases, Executors may also find themselves disputing things such as the settlement of litigation against the estate (if an eligible person were to bring a Family Provision Claim), or if one of the Executors acted as the deceased’s Attorney during their lifetime, the other Executor(s) may take issue with transactions conducted by the Attorney prior to the deceased’s passing.
Initially, the lawyer engaged to assist with the administration of the estate will try to resolve the issue between the Executors. However, if the lawyer is receiving different instructions from each Executor, this puts them in a position of conflict, and they may be unable to assist any further untilthe issue is resolved.
If the Executors are open to the idea, they may be able to engage an independent third party, to act as a mediator for their dispute. This would avoid the cost of each engaging legal representation to settle the matter.
However, if the mediation is unsuccessful, or one of the Executors isn’t willing to participate, then it may be necessary for each Executor to engage their own lawyer to represent them in the dispute. This lawyer cannot be the same lawyer who is already assisting with the administration of the estate, unless the lawyer has consent from the other executor, and the dispute would incur additional legal fees payable by estate.
Having multiple lawyers involved to settle the dispute can be complicated, time consuming, and expensive. It is therefore ideal if the Executors can work through the problem and come to an agreement without needing to engage additional legal representation.
Unfortunately, engaging more lawyers won’t always resolve the issue. Sometimes, Executors come reach a deadlock, and neither will budge in the decision-making process.
If this is the case, then the Executors may need to apply to the Supreme Court for an order to settle the issues and provide a clear course of action so the administration of the estate can move forward.
The other option is that one of the Executors may choose to step down from their role as Executor, if they decide they no longer wish to act and be involved in the administration of the Estate. This is known as ‘renouncing’ the role of Executor and can be done by signing some additional forms that are lodged with the court. The remaining Executor(s) can then proceed with applying for the Grant of Probate, and administering the Estate, without the involvement of the renounced Executor.
Whilst it is impossible to guess how people might behave following the death of a loved one, the first step in avoiding Executor disputes is to appoint people to the role of Executor who you believe will get along and act in the best interests of your estate.
If appointing multiple Executors in a Will, it is important to consider whether the Executors have a pre-existing relationship, whether they will be able to cooperate and work collaboratively with another person, and whether there may likely be any potential conflicts between them when administering the estate.
For example, some people like to appoint a friend or independent third-party as the Executor of their Will, if they suspect that their children may squabble following their passing, or they have a history of not getting along. Alternatively, others choose to only appoint one Executor to act. This means that the Executor can act alone and doesn’t need to make joint decisions with anyone else when administering the Estate.
We’re here to offer you practical advice about your appointment as Executor or Administrator, and to do whatever we can to help you through it.
Safewill Legal is Australia’s most affordable comprehensive Probate and Letters of Administration service. We charge one fixed fee to obtain a Grant of Probate or Letters of Administration, regardless of the size of the estate.
Our team is ready and able to provide a complimentary initial phone call about where to start. Start a live chat online at safewilllegal.com or call us on 1300 942 586.
The information contained in this article is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from an estate planning lawyer.