What Is the Role of an Executor in a Will?
An executor is a person who takes on the role of the deceased and is responsible for the administration of the estate. The duty of the executor differs depending on the kind of estate. However, the following responsibilities are often associated with the position:
- The process of collecting and assembling the real and personal estates in order to administer the estate effectively in accordance with the applicable legislation;
- notifying all interested parties, including beneficiaries of the Will
- Incorporating a sealed exhibit into the Supreme Court’s record that contains a complete list of all of the inventory maintained inside the estate;
- Preparing and submitting to the Supreme Court an estimate of the total costs associated with the administration of the estate;
- submitting to the Supreme Court the appropriate Grant of Probate and Letters of Administration;
- and providing the relevant Grant of Probate and Letters of Administration to the Supreme Court
- Completing the deceased’s income tax filings;
- and taking the appropriate actions to divide the estate in accordance with the deceased’s Last Will and Testament.
Practically speaking, there are other things an executor of a will is responsible for:
- arranging for the deceased’s funeral and/or burial or cremation;
- arranging for the deceased’s burial or cremation
- Locating the original Will and verifying it with the beneficiaries are two important tasks.
- Making sure that the assets are safe, which includes securing properties and valuables, bank accounts, and paying insurance companies;
- lodging taxation returns with the Australian Taxation Office on behalf of the deceased and his or her estate;
- and selling properties and distributing assets in accordance with the Will.
The executor of an estate is responsible for ensuring that the estate is administered in accordance with the many laws and rules that regulate the administration of deceased estates.
The tasks of an executor are extensive and complex. Some estates are intricate, and the executor may need to confer with a legal professional to assist him or her in completing the estate’s final arrangements.
The executor of a will is also responsible for the preservation of estate assets, the administration of trusts, and the making of investments on behalf of beneficiaries who are under the age of eighteen years.
It goes without saying, choosing your executor is very important.
Frequently Asked Questions
Is it mandatory for executors to notify beneficiaries?
Yes, executors of a will are required to notify any beneficiaries of the will. Beneficiaries have a legal right to know whether or not they have been included in a will or trust.
What is the time limit for an executor to distribute a Will?
The executor has 12 months from the date of the decedent’s death to distribute his or her assets. However, if the executor has been delayed for a variety of reasons, the process may take longer than anticipated.
Is it permissible for an executor to withhold money from a beneficiary?
Executors are legally bound to carry out the final desires of the deceased expressed in the Will – this includes distributing the estate to the beneficiaries in accordance with the Will.
However, if the estate is insolvent or if there are debts or taxes owing, they must be paid before the estate may be divided to the beneficiaries.
When it comes to executing a will, is it preferable to have one or two executors?
The responsibilities of an executor of a will can be demanding and extensive, which is why it might be beneficial to designate two executors in some situations.
Does the executor have to locate the Will?
It is the executor’s responsibility to locate and contact all beneficiaries of a will (people who are left something in the Will). This covers anyone who may be residing across state lines or across the globe. Everyone who will benefit from the estate should be informed.
What about the funeral arrangements?
As an executor, you will be responsible for planning and paying for the deceased’s burial as well as any other necessary administrative charges. First and foremost, you should determine whether or not the deceased individual had a pre-arranged or pre-paid funeral arrangement in place. Examine the Will or Advance Care Directive to see if there are any funeral instructions or desires that have been expressed.
If there is no expression to be buried or cremated, you will need to confer with the Next of Kin or other family members before making arrangements with a funeral home of your choosing.
What about the Pets?
If the deceased individual had a pet, you’ll need to make arrangements to see that it is properly cared for. If you, as the executor, are also the deceased person’s partner or spouse, you may already be the most qualified person to care for the pet in the future. Alternatively, it is possible that the deceased individual designated a guardian for their pets in their Will.
If their wishes are known, it makes things a whole lot simpler for everybody. If this is not the case, you will need to make arrangements for someone to provide continuous care for the animal.
Does the Executor Chase the Death Certificate?
The death certificate will be required by the executor in order to file for a Grant of Probate and for the majority of the estate administration procedure. Most of the time, the funeral home will handle the paperwork for you, including registering the death with the Office of Births, Deaths, and Marriages. The Office of Births, Deaths, and Marriages will then send you a copy of the death certificate, which you can keep.
What about the Grant of Probate?
When considerable sums of money (often $50,000 or more) must be transferred or claimed on behalf of a deceased person’s estate, the executor is required to file an application for a Grant of Probate. This can be accomplished through the Supreme Court of the appropriate state or territory.
Financial institutions including as banks, superannuation funds, and insurance companies will require the Grant of Probate in order to grant consent for the executor to handle the estate in accordance with the will.
Does the Executor Cancel Utilities etc
Depending on whether the deceased individual lived alone, you may be required to terminate services or utilities such as electricity and water supplies, rent, subscriptions, and mobile phone and internet contracts. Consider the best time of day to complete this task. It may be best to hold off on cancelling some services until the end of the estate administration process, for example, if insurance is required to cover property and other items left in the Will, or if the mobile phone is required to access the deceased person’s online accounts, it may be best to wait until the end of the estate administration process.
Tax returns for the dead individual and their estate are filed by the Executor or Administrator for the financial year in which they were appointed.
An executor of a will is responsible for filing a tax return on behalf of the deceased person and their estate for the fiscal year in which the deceased person died.
Does the Executor Determine the Assets, Debts & Liabilities
It is the executor’s responsibility to be aware of the whole worth of the estate left behind. To do this, you’ll need to make certain that all costs and obligations (also known as debts) are paid in full. This involves the settlement of obligations owed to the deceased as well as the payment of the deceased’s debts from the assets of the deceased’s estate.
You’ll need to appraise and, if necessary, sell any real estate or other property owned.
Who contacts Centrelink?
Government or Centrelink payments, pensions, or other benefits obtained by the deceased through the Department of Human Services (DHS) or the Department of Veteran’s Affairs (DVA) must be notified, and benefits must be revoked if they were received by the deceased.
If the qualifying standards for bereavement benefits and other government help are satisfied, the dependants of the deceased person may be entitled for assistance. More information may be obtained by contacting your local Centrelink office on 132 300 or by visiting the Services Australia website.
What about the ATO?
When someone passes away, the Australian Taxation Office (ATO) will need to be told because if they have ever filed a tax return and have a Tax File Number, they will need to be alerted. As part of their responsibilities, an executor must file a tax return on behalf of the dead individual and their estate for the current fiscal year.
For further information about tax returns, contact the Australian Taxation Office (ATO) on 13 28 61.
Who closes the Bank Accounts?
After the deceased person’s obligations and liabilities have been paid in full and the deceased estate has been fully dispersed, the Executor may shut any of the deceased person’s bank accounts that were exclusively in their name, as well as any other accounts that were utilised throughout the estate administration process.
What happens when executors are unable to carry out their responsibilities?
If one or more of the executors are unable to carry out their responsibilities, it is critical that a replacement executor be appointed as quickly as possible. An executor can be appointed by calling the probate court and requesting that they be appointed.
In the absence of a will, the court will appoint an administrator to oversee the estate’s administration. If there is a will, the court will select an executor who will carry out the desires of the dead after his or her death.
If you have reason to believe that the executors are not properly administering the estate, you can approach the probate court and request that they conduct an investigation. The executors may be ordered to disclose papers or accountings pertaining to the estate by the court system.
If the executors fail to comply with the order, they may be removed from their positions and replaced by another executor designated by the court.
What happens if the executors are unable to come to an agreement?
If there is disagreement concerning the will or how it should be executed, executors can ask the court to settle the dispute, but this procedure is time-consuming and expensive. In addition, the executors may be required to deposit a bond, which is an insurance policy that assures the executors’ proper fulfilment of their responsibilities.
What things need to be considered when choosing an Executor?
As you can see from the foregoing, being an Executor is not for the faint-hearted. It can prove to be incredibly complex, time-consuming, and require a person who has the ability to work with the beneficiaries at often, a very difficult time. Not to mention, some beneficiaries or others may be disappointed or angry about what was or wasn’t left to them.
Is the person responsible and has the skill and time necessary to do the job?
Your executor must be someone in whom you have faith that he or she will follow your instructions and carry out the provisions of your will. You should feel secure in the knowledge that the individual you have picked is honest, trustworthy, and ethical in his or her behaviour. Importantly they also need to be a person who has both the time and skill to manage this complex role.
Does the individual reside in the state of the deceased?
For example, if you possess property in New South Wales, you will need to have your estate handled in this state. The Supreme Court of New South Wales will only provide a grant of probate to an executor who is able to produce an address in the state of New South Wales as proof of his or her identity. Additionally, naming an executor who lives in your state will make it easier for your executor to sign all of the necessary documentation in person, keep a watch on your house and assets, and eventually sell or transfer those assets to your beneficiaries.
Is the individual well-organized?
When you die, your executor is in charge of overseeing the administration of your estate as a whole. It would be great idea to choose someone who is proficient in paperwork and has previous expertise in maintaining accurate financial records and accounting. A person who will have the time to deal with your estate should be chosen as the executor of your estate as well.
Will the individual be able to cope with any potential family conflicts?
At times, the executor may be required to resolve any conflicts or disagreements that may emerge amongst your beneficiaries, or to deal with any claims that may be made against your estate by third parties.
Is the person you have chosen to be your executor happy to do so?
Finally, you should be certain that the individual you have in mind would be delighted to take on the task you are considering. It is critical that your executor understands your wishes as well as what you anticipate of them in their role as your executor. If your executor discovers that they have been appointed as your executor after your death, they may not be willing to accept the post and may file an application with the court to resign from their position as executor. This may lead to a person being appointed as an Executor that you did not want to administer your estate.
How Can Law By Dan Help?
Our lawyers can assist you in all matters relating to estate planning, including helping you choose a good executor. Alternatively, if you’re an Executor and need legal advice with respect to your role and its functions, by all means, reach out to one of our estate planning experts today. We operate in most major cities in Australia including, Sydney, Melbourne, Brisbane, Adelaide, and Perth.
