This Basic Guide provides a general overview to give you an idea of the role played by the Executor of a deceased estate. You should always consult one of our lawyers for answers to or advice about any specific questions you may have concerning a deceased estate.
An Executor is someone appointed in a Will to undertake the job of firstly obtaining probate of the Will when the Will maker dies, and then taking care of the administration of the deceased estate in accordance with the Will. One or more people can be appointed to act as Executor, having to act jointly there are more than one.
Here are the main things an Executor must do in NSW:
- Applying to the Supreme Court of NSW for a grant Probate, which is essentially a court order confirming the appointment of the Executor and the validity of the Will that he or she is to administer.
- Finding and taking control of the assets of the deceased estate.
- Paying any liabilities of the deceased estate, such as debts, taxes and the funeral, legal, accounting and other expenses the Executor incurs in administering the deceased estate.
- Distributing to the beneficiaries in accordance with the Will the remainder of the estate (after payment of liabilities), including by transferring ownership of real estate or shares.
The Executor has to make all kinds of decisions in carrying out those functions. For example, the Executor needs to decide how and when assets should be sold, at what price and on what conditions. If money is owed to the deceased estate, the Executor will need to consider whether to sue to recover the debt or to accept a compromise. Advice will need to be sought and decisions made about any taxation issues that may arise regarding income or asset disposal. If an inheritance needs to be held for an extended period before the beneficiary becomes entitled to it, the Executor will need make investment decisions and perhaps decide about leasing, maintaining, repairing, or improving estate assets.
It is therefore very important to take care in choosing your Executor. Some of the things to consider are:
- Whether to appoint one or more than one Executor? Whereas a sole Executor is alone responsible for decisions and actions taken for the deceased estate, having more than one Executor means they must act together and agree on everything. This raises the problem of what happens if joint Executors disagree on important decisions. However, it can also provide checks and balances on decision-making where a consensus is required.
- What family issues, tensions or conflicts might need to be considered in appointing one or more than one of your children or siblings as your Executors?
- What about appointing a professional Executor, like a professional trustee company or the NSW Trustee and Guardian or a professional adviser like an accountant or a lawyer? Although they will bring impartiality, objectivity and professional skill to the role, they will also charge the estate significant fees to act as Executor. Sometimes the solicitor or accountant appointed as Executor will be already retired when the Will maker dies, and they may be unwilling to take on the role when the time comes. A non-professional Executor you appoint, such as a family member, will in any event be able to seek professional advice and assistance at the cost of the estate in carrying out their duties as Executor.
- Will your Executor also be acting as a trustee, holding an inheritance on trust for a beneficiary until Will says the beneficiary is to receive it? If so, the Executor will also have a lot of powers and discretion to make decisions about the inheritance. This can potentially last for many years. In the case of child beneficiaries, Wills generally permit the inheritance of child beneficiaries to be applied for their education, maintenance and advancement in life until they are old enough to inherit. In such cases, the Executor will need to interact with the child’s parents in relation to the investment and application of the inheritance.
- Will your Executor be given important discretions like the right to allocate specific assets to individual beneficiaries, or the right to postpone the sale of assets and thus delay completing the administration of the estate? In such a case, you will need to think about whether a conflict of interest between the Executor and other beneficiaries might arise over such matters.
There are lots of other things to consider, depending on your individual circumstances, and we at Craddock Murray Neumann Lawyers would be happy to speak to you about how they might impact on your own decision in making or amending your own Will.
How can Craddock Murray Neumann Lawyers help you?
As you can see from the above information, it is important to choose an Executor who will preferably be organised, impartial and reliable. It is crucial to choose an Executor you can trust to carry out your final wishes whilst at all times acting in the best interests of your chosen beneficiaries.
At Craddock Murray Neumann Lawyers, you will find a lawyer who is able to act with your Executor to obtain Probate and then assist the executor with all facets of the administration of your deceased estate. The advantages of appointing an experienced Estate Planning lawyer to assist your Executor include:
- The efficient, reliable and prompt provision of services to your Executor and family members including basic explanations and advice.
- Sensitivity to the importance of at all times acting appropriately and looking after the needs of your Executor and your family and other beneficiaries.
- The provision of expert advice to your Executor and to your family and other beneficiaries, including by working with other professional advisors such as accountants, tax specialists or financial advisers.
- Craddock Murray Neumann Lawyers is a firm with long experience in providing personal legal services, including in relation to deceased estates and Estate Planning.
No matter who you appoint as your Executor, Craddock Murray Neumann Lawyers will be able to provide the requisite advice to guide them through this often difficult process and ensuring that your wishes are looked after throughout.
For more information on your role as the Executor of a Will, or how our Wills & Estate Planning lawyers can help you, please contact our team at craddock@craddock.com.au.