Have you been named the executor of a Will? Or, are you preparing your Will and wondering who to appoint as your executor? Here we set out what the role of ‘executor’ really means, what you need to do if you are appointed as the executor, and when it may be useful to seek the advice of a Wills and Estate lawyer.
Understanding Wills and Estates
It is important that everyone puts together a Will setting out their wishes in the event of death. Otherwise, a set of default rules will apply to distribute property and assets (‘the estate’) to various family members.
A valid Will is essential for making sure that the wishes of the deceased person are carried through, and to minimise the risk of Will and Estate disputes.
What is an executor of a Will?
The executor of a Will is the individual with overall responsibility for seeing that an individual’s wishes are carried out after their death. The individual who is to serve as executor should be specified in the Will. In carrying out this role, the executor has a range of obligations, both under the terms of the Will, and the law.
What do you have to do as an executor?
The key obligations of an executor include a requirement to:
· Organise the funeral. The executor is required to do this according to the wishes of the individual who has died, as set out in their Will;
· Locate the Will. Often the executor of the Will will already have been told where the Will is kept beforehand. If so, the executor needs to collect it; If not, they need to try and find out where it is;
· Get ‘probate’ from the Court. This is a legal step, where the Court recognises that a Will is legal and valid and that the executor is permitted to administer the estate. Probate is an essential step before distributing any assets or selling property;
· Confirm the estate. The executor needs to work out which assets are held by the estate, as well as any debts owing, at the time of an individual’s death. The executor will collate this information in an official statement of the individual’s assets and liabilities, including any real estate, cash, personal effects, and debts owing by the deceased.
· Pay debts and settle the tax bill. Once the executor has confirmed that these are, in fact, owing, the executor should pay any debts (including debts owed to the Australian Tax Office), or set aside payment for debts that will be owing;
· Identify the beneficiaries. These are the individuals who the maker of the Will intended to benefit from their estate;
· Protect and defend the estate. The executor needs to ensure that the estate itself is maintained until it is distributed. The executor also needs to defend the Will against any Will disputes. These often occur when an individual who has been left out of the Will, or who is unhappy with what they have been left, challenges or contests the Will in Court.
· Maintain accounts and records. The executor needs to maintain accurate records of all activities in relation to the estate. This includes any records which would allow them to substantiate any costs.
What happens if no executor is appointed or there is no Will?
If there is no executor appointed, an application must be made to the Court for ‘Letters of Administration’. This application can be made by a range of family members of the deceased person who are counted as ‘eligible’. The Court will appoint an administrator who takes over administration of the estate.
Where there is no valid Will, the administrator will distribute assets according to rules set out in the Succession Act 2006.
Do I need a Lawyer?
There is no requirement in the law for executors to be lawyers, nor for executors to seek the advice of lawyers before performing all their functions. However, the decisions of executors have significant legal consequences. If you are made the executor, but fail to meet your obligations, you could be held legally responsible.
It is also highly recommended that you seek professional legal advice where there is likely to be a legal claim made against the estate, through a challenging or contesting of the Will.
AJB Stevens, as specialist Will lawyers, can help executors of Wills by advising and supporting them in the administration of the estate, ensuring that their legal obligations are performed, and that liability is minimised.
