More often than not, a will-maker (‘testator’) will name a person in his/her will to distribute the testator’s estate – this person is called an executor.
Although there is an abundance of professional executors in Australia (and beyond), some wills may opt to appoint a close friend or relative to act as the executor. In doing so, a testator can be assured that their estate and wishes are carried out by someone they love and trust. While this is certainly a flattering appointment, the duties of an executor can sometimes be complex and overwhelming.
I’ve Been Named An Executor – What Do I Have To do?
All wills vary depending on the wishes of the testator, and the circumstances within which they have departed. This being said, there are a number of executor’s duties which will remain largely consistent regardless of the surrounding circumstances of the will. These include:
- Notifying all the beneficiaries named in the will.
- Managing any property or goods left in the will.
- Having the estate valued, and keeping a list of the valuations.
- Completing any necessary income tax returns and get clearance for distribution of the estate from the Australian Tax Office.
- Paying any debts that the deceased may still owe.
- Establishing trusts.
- Dividing the estate to the beneficiaries.
- Obtaining the authority to administer the estate.
The above list is a fairly superficial overview of an executor’s duties, but what it does successfully show is that administering an estate as an executor is no simple task. Perhaps the most important task an executor must undertake is to obtain authority to administer the estate, or in legal terms, get a ‘grant of probate’.
Getting A Grant Of Probate
Even though a will is completely explicit in naming you as an executor, you still require the permission of a Probate Court before you are able to legally distribute the testator’s estate. While this may seem like an unnecessary legality, grants of probate exist to protect testators from executors deviating from their wishes.
While every jurisdiction in Australia has slightly different requirements, a grant of probate normally requires that the Court be satisfied that there are no later wills, that the deceased was 18 or over when the will was signed and that the deceased was of sound mind and not under any undue influence when the will was signed.
In addition to all of the above, an executor will generally have to wait at least 14 days after the death of the testator before he/she can seek a grant of probate. Where a will has been properly drafted and formulated (in accordance with the requirements of a valid will, proving all of the above is a very simple process – Courts are aware of the emotional strain of losing a loved one, and have streamlined the process as much as possible. Again, depending on where you are living in Australia, getting a grant of probate can be as simple as submitting a simple form and some documentation.
Some Final Thoughts on Executor’s Duties
While it is of course absolutely necessary that an executor take as much care as possible in dealing with his/her duties, there is a general rule of thumb that these duties be discharged within a year of the grant of probate. A failure to distribute the estate and carry out all of your duties may lead to a complaint by the beneficiaries to your State or Territory’s Supreme Court.
Similarly, if you decide that you do not want to act as an executor, most wills provide for a second choice for an executor. Where this is not the case (or the second executor also refuses to act), an application can be made to your Probate Court to have the court appoint a legal administrator of the testator’s estate. Naturally, this will incur some legal expense and has the potential to diminish the overall value of the estate.
While this article captures most of the essential considerations and duties of an executor, it is by no means a comprehensive list. For any other considerations or concerns (or even just a helping hand!) it is always in your interest to contact an Estate Lawyer to streamline and take as much of the stress away from your appointment as executor. At Hentys, our lawyers can provide you with expert advice regarding Estate and Will Disputes. To find out more, get in contact with our team today.