What Does The Executor Of A Will Do?

What Does The Executor Of A Will Do?

What Does The Executor Of A Will Do

In layman’s terms, an executor of a will is someone you entrust your last wishes on this earth with, someone you believe will carry out your wishes in the way that you want. Let’s look at exactly what an executor does and whether or not you’d be up for the job.

How To Choose An Executor

Choosing a close friend or relative isn’t always the best option, not because you can’t trust them to do the job right, but because it can be overwhelming to deal with all of the challenges involved with executing the terms of the will at the same time as grieving. If possible, choose someone who understands financial, taxation, and legal implications. Your executor needs to be capable of preparing the necessary documents required to apply to the Supreme Court for a grant of probate. That doesn’t mean they need to be professional, so long as they can call on Probate lawyers and accountants for advice. They also need to be able to confidently deal with any disputes that may arise during their duties. Most importantly, an executor must be over 18 years of age and have no prior felony convictions.

What Are The Tasks Of An Executor?

So you’ve been named executor, but what do you have to do? Depending on how simple or complex the deceased’s estate is, an executor’s tasks are many and varied. They include:
  • Finding the will.
  • Arranging the funeral (depending on personal situations) and paying related expenses.
  • Contacting each of the beneficiaries, including any living or travelling abroad.
  • Administering the deceased person’s finances requires a clear picture of what the estate is worth, what debts and liabilities need to be paid by, the deceased’s estate, income tax, etc., out-of-pocket expenses. You may also need to lodge past tax returns.
  • Carrying out day-to-day tasks, such as redirecting mail, cancelling services, and arranging for pets to be cared for and fed.
  • It may take some beneficiaries time to collect their bequests due to where they live, and those bequests can be anything from jewellery, cars, houses, furnishings, or art. Until the property listed can be handed over to the appropriate recipients, they are the executor’s responsibility. They need to be valued and insured.
  • Suppose the deceased left a business or had an interest in a business. In that case, it might involve carrying on the business’s running, selling properties and other assets, organising tax issues, and investing funds prudently. It may also include determining if the business operates as a sole trader, partnership or company.
  • Transferring, distributing, or selling the estate assets to beneficiaries, such as investments, shares, land, and houses.
  • Notifying financial institutions, government organisations, and utilities, etc., that the person has passed.

Before Taking On The Role of Executor

We often assume that the executor’s role starts after a person dies, but it would be so much easier to carry out a little groundwork before the person numbers among the dearly departed. If someone asks you to act as their executor, discuss some practicalities like where the will is stored because finding that will is your first task. In other words, gather all the information required to fulfil your duty. Prepare for the role by:
  • Ensure the testator has a list of assets and debts, including bank and investment accounts, real estate, insurance policies, etc.
  • Knowing where the original copy of the last will and asset list is stored and how to retrieve them when the time is right.
  • Having contact details for the attorneys or agents chosen by the testator and what their roles are.
  • Discussing what the testator’s funeral or memorial service wishes are. Ask the testator if they want to be cremated or buried.
  • Discussing their will with them and their beneficiaries to help lessen any future problems.
  • Keeping a copy of all pertinent documents.

Risks Involved For Executors

Taking on the job of the executor of a will can be a risky business. You are responsible for resolving estate issues, disputes, and liabilities, including challenges to the will, family maintenance claims, entitlement issues, and beneficiary disputes. You need to ensure you are on top of the legalities involved with executing a will. You are responsible. Before executors can distribute property among the recipients, they must obtain a clearance from the Australian Taxation Office, or you run the risk of being personally liable for any unpaid tax. You must know how much income the person earned before and after death so that you can prepare a date of death tax return and an estate tax return.

How Do I Obtain A Grant Of Probate?

A probate grant is the Supreme Court’s formal acknowledgement that the will is the deceased’s last will, and you are the appointed executor. The grant also gives the executor legal title to deal with the estate’s assets. Most institutions need a grant before transferring assets over a particular value (usually $25,000) or if there is real estate property involved. It can take several months to source the documentation required to submit to the Supreme Court and another two to three weeks to receive it.

Communicate With Beneficiaries

Executors must identify and advise each beneficiary of their entitlements under the will as early in the administration process as possible. An executor must communicate to the beneficiary that they won’t necessarily be paid their bequest under the will for 6 to 12 months after death. Clear communication can help clear up potential issues.

Claims Against The Estate

Anyone who believes they didn’t receive their due under the will’s provisions may claim further provision. The person must make such a claim within six months of the granting of probate. The executor needs to be very careful because if they distribute all of the estates before the six months expiring and making a claim for further provision, they can be held personally liable. It is safer to wait if there is a concern about somebody claiming the estate until after the six months is up.

Frequently Asked Questions

What if I change my mind about being an executor?

Circumstances can change when you agree to be someone’s executor and actually to step into the role. If situations change, and they feel they can no longer fulfil the position, an executor may authorise someone else to administer the estate on their behalf.

What if there’s no will?

The first act required of the executor before distributing the estate is finding the will. If you can’t find the will, the law states that the deceased died intestate. When that happens, there is a particular order for paying family members.

Who looks after a trust

Some estate assets include trusts, usually for heirs under the age of 18 years. An executor usually acts as a trustee. Trusts often require many years of administration.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Executors Duties or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

Related articles
When Is Probate Not Required In NSW?
When Is Probate Not Required In NSW

Find out more about why you need a grant of probate in NSW and when it may not be required. Read more

Contest A Will In NSW
Contest A Will In NSW

Contesting a will in NSW can be a complex and emotional process. In order to contest a will, there are Read more

What To Do When Someone Dies In NSW
What To Do When Someone Dies In NSW

Find out more about the legal steps necessary to manage a deceased estate, what documents are required and how important Read more

Inheritance Disputes
Inheritance Disputes

You have to leave your possessions here when you die, but you can safeguard your assets for those you leave Read more