Executor of a Will

Published 16 Sep 2015
Louis Andreatta

Executor of a Will

A person named in a Will as the Executor is the person who has the responsibility of arranging the funeral of the person making the Will or administering his or her estate. This means identifying the assets of the deceased, and paying all debts and taxes of the deceased and thereafter distributing the estate to the persons named in the Will as beneficiaries.

An Executor may be personally liable for any mistakes made in administering the estate. Normally an Executor would engage a solicitor to assist to administer the estate because a solicitor is familiar with the law and the rules governing the administration of estates. Michael Witts is the solicitor at Maclarens Lawyers with decades of experience in advising Executors and in the administration of estates.

Normally an Executor will carry out his or her duties free unless the Will states the Executor is to be paid from the estate or by the estate. An Executor is entitled to recover any out of pocket expenses including solicitor's fees for administering the estate. If the person does not want to be an Executor, he or she can renounce probate by signing a "Renunciation".

What are an Executor's responsibilities?

After carefully reading the Will, an Executor should compile a list of the deceased's assets and property such as:

• Real estate

• Motor vehicles

• Bank accounts

• Shares

• Life insurance policies

• Superannuation

• Furniture

• Money

• Appliances

• Jewellery

An Executor should ensure the assets of a deceased person are protected and insured.

An Executor will be required to pay the deceased persons debts including funeral expenses and taxes.

It may be necessary to apply for a Grant of Probate from the Supreme Court. Probate is a certificate of the Supreme Court saying the Will is valid and the Executor can administer the estate. Some asset holders such as banks may require probate before releasing the assets. This protects the asset holder against liability or handing over assets to the wrong person. Usually there is a fee payable to the Supreme Court when applying for probate. However, where an estate has a value of less than $100,000, there is no fee for making a probate application to the Court.

After probate has been granted by the Court, the Executor must pay the debts and taxes of the deceased. Only then can the Executor distribute the remainder of the estate. There are rules governing the order in which debts must be paid.

It may be necessary to open a bank account in the name of the estate in to which all funds are deposited and from which debts are paid.

It may be necessary to sell assets to raise cash and pay debts.

It is normal for an Executor to prepare a distribution report which is given to beneficiaries when they receive their share of the estate. Normally, such a report will show the funds realised from the sale of assets and the debts paid. Normally such a report is prepared by a solicitor.

If there is no Will

If there is no Will, there is no Executor. In that circumstance, a relative can apply to the Probate Division of the Supreme Court for Letters of Administration. Once granted, the person granted Letters of Administration can proceed to distribute the estate according to law in the same manner as an Executor.

• Maclarens Lawyers can advise an Executor of his or her rights and responsibilities

• Maclarens Lawyers can complete the forms necessary to apply for probate

• Maclarens Lawyers can help identify and collect the deceased's assets

• Maclarens Lawyers can help and advise an Executor on whether there is a tax liability of the deceased

• Maclarens Lawyers can advise an Executor as to the order in which debts are required by law to be paid and the manner in which it is necessary to distribute the estate

• Maclarens Lawyers can assist an Executor in the event that a claim is made against the Executor or against the estate

• Maclarens Lawyers can help an Executor draw up a Statement of Assets and distribution reports to be given to beneficiaries