What is an executor & what is their role?

When creating a will, you will be asked to nominate a trusted person to act as your executor. The person you have chosen agrees to act in the best interest of your wishes and manage the administration of the estate after you pass away.  

 

The legal responsibilities of an executor

The legal responsibilities of an executor include but are not limited to:

  • Locating and reviewing the will
  • Managing the intentions for organ donation and funeral requirements
  • Acquiring the death certificate
  • Notifying beneficiaries 
  • Applying for Grant of Probate, if required
  • Contacting lawyers and Public Trustee if minors are involved
  • Ensuring all assets, valuables and personal or business interests are protected
  • Contacting life insurance providers, banks and any financial institutions
  • Arranging for evaluations of assets
  • Assessing any outstanding debts and arranging payments
  • Finalising tax returns
  • Redirecting mail and cancelling subscriptions, memberships, etc.
  • Managing the provisions in the will and the distribution of assets.

 

What must the executor pay for with the proceeds of the deceased's estate?

Funeral expenses are to be paid first and there is a particular order in which any other debts must be paid.  After funeral expenses are paid, the executor is entitled to payment of any actual expenses incurred relating to the administration of the estate before other debts are paid.

As an Executor, you might have to contact financial organisations and companies in which the deceased had money invested in order to realise those assets and become involved in selling various pieces of the deceased’s belongings such as jewellery, a boat or car.

Before distributing the estate, the executor or administrator may publish a notice of intended distribution and pay the debts of the deceased.

Expenses you may have to pay may include:

  • Funeral expenses not covered by insurance or a prepaid funeral – these may include funeral director costs or costs of the location for the funeral or service
  • Legal expenses not covered by insurance – death certificate costs, executor fees or even lawyers time. 
  • Outstanding tax, including any capital gains tax that may occur from selling any property and personal tax
  • Outstanding loans or mortgages
  • Any other debts that maybe outstanding – electricity, water, gas, etc.
  • Any remaining proceeds to be distributed as per the will or at the executor’s discretion.

Once debts have been paid, assets are either distributed according to the terms in the Will or they are sold so that money can be divided among the beneficiaries.

If you’d like to learn more about paying debts for an estate, read the following article from Law Access NSW.

 

Executor FAQ

Who can be an executor of a will, how many do you need?

You should choose a person you trust who is aged 18 or above. A will must have at least one executor. It is recommended that wills have an odd number of executors so that there is a casting vote to decide disagreements.

 

Can the executor be a beneficiary of the will?

The executor can also be a beneficiary in your will – most people choose their significant other, children or a close relative. 

 

Can you have co-executors of a will?

You can have co-executors; this means two or more people are named as executor of your will. Each person you name as an executor in your will has complete authority over your estate.

 

Do you have to have an executor for a will?

If you do not appoint an executor, then the probate court will assign one to the estate.

 

After a person passes away, can the executor of their estate be changed?

Yes, the executor can be changed. If you are the executor and no longer want this responsibility, you can advise the beneficiaries of the estate, followed by a visit to Probate Court to file a renunciation with the registry.

If you wish to be removed as an executor of a will, a person with a stake in the estate’s assets must file for a court proceeding. 

The court will only approve the removal of an executor if they are proven to be incapable of performing the necessary duties, are unsuitable for the position, or have become ineligible to act as an executor since the deceased appointed him or her.

 

What if the executor does not probate the will or follow the will?

The beneficiaries should seek legal advice and challenge the acts of the executor in probate court. 

Should an executor have a copy of the will?

Wills are not a public document until they are filed with the court of probate. Therefore, an executor has no right to read a will before the death of the testator (the person making the will).

 

Can an executor challenge or change a will?

Only the testator can change a will at prior to their death. After a death, the executor does not have authority to make any changes to the deceased person's will. Any person can contest a will and question the validity of it, and this is a case where legal advice would need to be sought.

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