The Ultimate Guide
When someone passes away, they often leave behind property, assets and sometimes debt. This is known as their ‘estate’ and it needs to be managed and finalised.
The executor of the Will is responsible for administering the estate, which involves three general steps:
- Collecting all property and assets
- Paying any debts
- Distributing the assets according to the Will
The executor of a Will has a lot to do when the testator (Will maker) dies. From arranging the funeral to applying for Probate and dealing with assets, the role of an executor is broad, multi-faceted and often very emotional. This Guide provides practical and relevant information about the executor’s journey and answers the questions that are most frequently asked.
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 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 Funeral Director
- Locate original Will
- Protect estate assets
- Make an Inventory
- Take out insurance
- Death Notifications
- 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.
- Engage Probate Consultants to assist with your application.
- 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.
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.
Can an executor override a beneficiary?
The executor of a Will has ultimate authority over the deceased estate and how it is administered. Whilst an executor has a fiduciary duty to act in the best interests of the estate and all beneficiaries, they have complete discretion to perform their role. Beneficiaries do not have to agree with the decisions of the executor and their consent is not required as long as the wishes of the testator are being carried out.
Beneficiaries under the Will have the following rights:
- To be notified that there is a valid Will.
- To receive a copy of the Will if they request it.
- To receive their inheritance in a timely manner, usually within 12 months of the date of passing.
- To be advised of any delays to the distribution of the estate.
- This could be because of legal proceedings or complexity in dealing with the estate’s assets or liabilities.
- To receive a Statement of Distribution explaining what their entitlement is and how it was determined.
Whilst beneficiaries have limited rights in relation to how the estate is managed, they can sue the executor if they feel the estate has been administered incorrectly or there has been a breach of duty.
The executor’s journey has many aspects – from the personal to the legal and financial. It starts with arranging the funeral and ends when the deceased persons estate is finalised, and the beneficiaries have received their inheritance.
There are core duties that all executors need to perform and an overarching obligation to act in the best interests of the estate and all beneficiaries. One of the most important tasks is applying for a Grant of Probate from the Supreme Court as this legal document proves that the Will is valid, and the executors have the authority to administer the estate.
Whilst executors have ultimate authority over the deceased estate, they are legally liable for how it is administered and should keep records of all their dealings in case their conduct is challenged by a beneficiary or the government.
Probate Consultants is Australia’s highest rated Probate service with a low fixed fee and the fasted approval times – Guaranteed. We help executors around the country apply for a Grant of Probate making the process fast, affordable, and easy. Call us today on 1300 561 803 for a Free Consultation.