Who can be the executor of a Will?
Any person over the age of 18 years can be named as an executor of a Will as long as they have mental capacity. Will makers often appoint their spouse or children to be executors, however others choose lawyers, accountants, or Trustee companies.
Choosing the right executor is crucial given the complex and involved nature of the role. More than one executor can be named with four being the usual limit as most Courts will not grant Probate to more. It is important to appoint substituted executors who step in where the instituted (first named) executors are unable or unwilling to act, usually because they have deceased.
Can the executor of a Will be a beneficiary?
The executor of a Will can also be a beneficiary under the Will in Australia. This does not create a conflict of interest and in fact many Wills name the testator’s spouse as the sole executor and sole beneficiary.
The executor of a Will can also be a witness to Will as long as they are not also a beneficiary. Beneficiaries should not witness the Will.
What does an Executor of a Will do?
The executor of a Will is tasked with many duties when dealing with a deceased person’s estate and affairs. In performing these duties, there is an overarching obligation to avoid conflicts of interest and act in the best interests of the estate and all beneficiaries.
There are legal and compliance obligations that come with being an executor and they are liable for how the estate is administered. This liability is usually to the beneficiaries of the estate, but also to the government in relation to tax.
The tasks that an executor carries out will differ according to the nature, size and complexity of an estate. There are, however, core duties that all executors must perform.
Core Duties of an Executor of a Will
- Arrange Funeral
- Apply for Death Certificate
- Usually ordered by Funeral Director
- Locate original Will
- Protect estate assets
- Make an Inventory
- Take out insurance
- Death Notifications
- Centrelink
- ATO
- Utilities & Services
- Asset holders
- Apply for Probate
- This includes preparing an inventory of all assets and liabilities
- Administer the Estate
- Collect all property and assets – sell where required
- Pay debts
- Final tax return
- Keep records
- Distribute net estate to beneficiaries
- Transfer ownership and/or distribute funds
- Finalise records and keep for required period, usually 7 years
- Executors may need to provide beneficiaries and/or the Supreme Court with a full accounting of the estate administration if requested.
How does an executor apply for Probate of a Will?
Probate of a Will is a legal process where the Supreme Court certifies that:
- A person has passed away (the deceased).
- The deceased left a valid Will.
- The executor(s) named in the Will have the authority to administer and finalise the deceased’s estate.
There are four main ways to apply for a Grant of Probate:
- Prepare the application yourself as a Self-Represented Applicant (SRA).
- Engage Probate Consultants to assist with your application as an SRA.
- Instruct a lawyer to act on your behalf.
- Authorise a Trustee Company to act as the executor.
Deciding how to apply for Probate is an important decision for executors. There are a variety of options, and making the right choice is crucial.
If you are an executor and align with applying for Probate of a Will in Australia as an SRA, get in touch for a Free Consultation. There are no timers and never any obligations.
Can an executor change a Will?
Whilst an executor cannot change the Will itself, they can change the way the Will is administered with the permission of all beneficiaries. This occurs when the beneficiaries agree to vary how the estate is to be distributed. To formalise this agreement, the beneficiaries can sign a deed of family arrangement or deed of variation, which allows the executor to alter how the Will is administered.
There are other situations where an executor may not follow the wishes outlined in the Will. These are less common and arise where there is a partial intestacy, estate debts or the need to settle a potential claim.
