Thinking about making a will can be overwhelming. Part and parcel of writing a will is appointing an executor. Many people may not understand the responsibilities of an executor – whether it is appointing one or being named as one.
Executor of a deceased estate – what does it mean?
By naming an executor in a will, it means the deceased wants that person to administer his or her estate – that is, to be responsible for carrying out the wishes of a person after they die within the terms of the will and protect the assets of the estate.
Executor responsibilities can also be shared with another person. Usually one or two executors are considered sufficient, though there can be any number of executors named in a will. Sole executors will probably need the assistance of a solicitor to deal with the duties and obligations of administration.
What are an executor's responsibilities?
Overall, an executor's duty is to take charge of the deceased's assets and property, oversee the expenses of the funeral and administration, ensure debts and taxes are paid, and distribute the assets to the beneficiaries in accordance with the will. Assets may also have to be valued.
The executor must apply to the Probate Registry of the Supreme Court for a grant of probate saying that the will is valid and that the executor has the right to administer the estate. Legal advice is needed when applying for probate as forms will be needed to be prepared by a Solicitor, along with documentary evidence of death, proof of proper signing and attestation of the will, and details of assets and liabilities.
The duties of an executor may include:
- Attending to funeral arrangements;
- Locating the will;
- Determining the beneficiaries;
- Collecting assets;
- Making sure all claims and debts are received, assessed and paid if substantiated;
- Distributing assets according to the terms of the will, including managing longer term trusts;
- Preparation and management of accounts;
- Preparing and lodging taxation returns;
- Defending litigation.
Are executors paid?
Executors are entitled to apply to the Supreme Court for commission for work as executor. But if the executor is also named as a beneficiary in the will the bequest will usually be presumed to be payment for administration unless there are circumstances or something in the will to overturn that presumption.
Can a person refuse to be an executor?
Even if the named executor earlier agreed to be one, they can renounce the executorship by signing a "renunciation". The solicitor for the estate will file the necessary documentation with the Probate Registry of the Supreme Court. Public Trustees, such as the NSW Trustee and Guardian, can be nominated executor in a Will or take over the task from someone who has been nominated executor.
How can a solicitor help an executor
- Inform in detail about the rights and responsibilities of an executor;
- Prepare and help complete the forms needed to apply for probate;
- Assist to identify and collect the deceased's assets;
- Advise on the possibility of tax liability;
- Advise about the legal order in which debts must be paid and the remaining assets distributed;
- Explain the legal order of distribution of the estate in a case where there is no will;
- Assist with any claims that may be made against the executor over administration of the estate;
- Help draw up a statement of assets for realisation and distribution to the beneficiaries.