What are the duties of an Executor?
So you’ve been appointed as executor of a will – What next?
The death of a loved family member or friend is invariably a difficult time, and without a properly implemented estate plan, it can become an unfortunate burden on the executor of the deceased person’s estate – once again reaffirming the importance of fulsome estate planning that can minimise distress at that unfortunate time. The following information is a basic outline of some of the duties of an executor, however if you have more queries, our estate lawyers can assist and advise you.
The first thing to be ascertained is, whether there is a will of the deceased person. The will itself nominates who is appointed as executor, so it’s important that it be located (a copy is sufficient for immediate purposes, though the original will needs to be obtained as part of the estate administration process). If you’ve been appointed as executor, an important matter to be aware of is that, even though you’ve been appointed executor by the will, you do not have to accept that role. There are a wide variety of reasons why you may not want to take up the role – though you do not have to give any reason. If you renounce the role of executor, then the will generally appoints an alternative executor, who then has the opportunity to take up the role. If no executor named in the will wishes to take up the role, then Queensland legislation determines who has priority to step into the role.
Technically, the executor has the authority to determine the funeral arrangements for the deceased person – however this is commonly left to family members to organise. If a dispute arises concerning funeral and cremation/burial arrangements, then specific legal advice ought to be sought as there are issues if timeliness that may necessitate urgent action to ensure the proper burial or cremation of the deceased person.
Thankfully, disputes concerning funeral arrangements and burial or cremation are rare, and the executor can then approach the estate administration at a less-frantic pace. It’s usually at this point that an executor seeks legal advice, about their role, duties and what is required of them. Our lawyers can assist at this difficult time.
One of the first considerations is whether a grant of probate is required. In Queensland, a grant of probate is not always required, particularly for smaller, less complex estates – however there are some significant benefits to the executor in obtaining the grant of probate. The grant of probate acts as a Supreme Court order confirming the authority of the executor to deal with the deceased person’s estate.
Whether or not a grant of probate is required, the executor’s duties then remain to be fulfilled. These duties are:
- To collect (or ‘call in’) the assets of the deceased person’s estate. This involves matters such as collecting the funds remaining in bank accounts, transfer of real property into’ the executor’s name for sale, sale or transfers of shares, as well as dealing with the personal belongings of the deceased person.
- To pay any debts or liabilities of the deceased person, and their estate. Any debts owed by the deceased person have to be settled prior to any distributions from the estate, and this includes any expenses and costs incurred by the executor in the estate administration. The executor can exercise an indemnity from the estate, meaning that the estate pays those costs (and so the executor is not financially disadvantaged for being appointed as executor).
- To deal with any estate disputes that may arise. This may include an eligible applicant contesting the terms of the will by a further provision claim. There are specific rules and timeframes executor’s need to be aware of when dealing with an estate, to ensure that the executor does not distribute an estate unlawfully and so become liable for breach of duties.
- Once debts are paid (and, if applicable, disputes resolved) and relevant statutory timeframes complied with, the executor can start distributing the estate to the beneficiaries. Depending on the terms of the will, those distributions can be transfers of monetary gifts, or transfer of specific assets (such as a property, shares, motor vehicle or other asset) to the beneficiaries.
The above list is a rather simplified summary, and quality legal advice can ensure that you don’t unintentionally fall afoul of any of the strange rules, duties, obligations and timeframes that are part of the estate administration process. For example, an executor has a duty to keep beneficiaries updated as to the estate and their entitlements, and to account to them – but the extent of information each beneficiary is entitled to differs depending on the terms of the will. Our estate lawyers are available to assist you in understanding your role and duties as executor, as well as assisting you in fulfilling those duties in a proper, lawful and timely manner.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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