Make an Executive Decision & Appoint an Executor

Date: Aug 03, 2010
Document Type: Newsletter

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

Solicitors can:

  • 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.
Bankrupt Estates
Date: May 02, 2010
Can I bequeath my heart?
Date: Dec 13, 2011
Can I write my own will?
Date: May 01, 2007
Capacity to make a will
Date: Jun 20, 2014
Caveats in Probate Proceedings
Date: Jul 24, 2014
Choosing your executor
Date: May 09, 2012
Coercion in making a will
Date: Sep 07, 2011
Court Made Wills
Date: Jul 21, 2009
Creating a Living Will
Date: Jun 06, 2011
Do I Need a Power of Attorney?
Date: Nov 01, 2009
Family Provision Overview
Date: Jul 16, 2012
Fixing errors in Wills
Date: Mar 28, 2012
Gambling away inheritance?
Date: Jun 18, 2012
He didn't leave me anything
Date: May 05, 2009
Informal and Stopgap Wills
Date: Nov 26, 2013
Life changes and wills
Date: Mar 12, 2013
Lost Wills
Date: Mar 21, 2014
Moral duty and family provision
Date: Oct 01, 2012
Obtaining Probate
Date: Feb 03, 2011
Organise Organ Donation
Date: Jun 04, 2010
Proper funeral planning
Date: Jan 31, 2013
Security for Costs
Date: Aug 08, 2010
Testamentary Capacity
Date: Apr 01, 2012
The Basics of Estate Planning
Date: Apr 01, 2011
The Curse of the Homemade Will
Date: Sep 18, 2014
The Guardianship Tribunal
Date: Feb 02, 2010
The Problem With Internet Wills
Date: Jun 18, 2014
The Will fundamentals
Date: Apr 05, 2009
What are Powers of Attorney?
Date: Jun 16, 2014
What can a will be written on?
Date: Sep 07, 2011
What is a “Benjamin Order”?
Date: Oct 04, 2013
What is a will?
Date: Jan 01, 2008
When should a will be changed?
Date: Feb 03, 2012
When should I make a will?
Date: Mar 01, 2008
Who will look after your pets?
Date: Nov 15, 2011
Witnessing a will
Date: Sep 07, 2011
Back to Publication List