We are often approached by clients, either those making wills or those who have been appointed as an executor under a will, with questions as to the nature of the role and the responsibilities associated with it.
An executor (who may also sometimes be referred to as a personal representative or trustee) is an individual who has been considered by a will-maker to be an appropriate person to look after the will-maker's affairs once that person has passed away.
The executors primary obligation is to carry out the deceased's wishes in accordance with his or her will, and in accordance with the law.
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Of course the exact nature of the duties will vary and be dependent upon the exact terms of the will, the nature of the estate, parties (including beneficiaries) involved and the property owned by the deceased.
However, in all cases the legal responsibilities and duties cast upon executors are important and we touch here on some of the more common of those.
Although the list here is not exhaustive, some of the main duties that an executor is require to undertake when carrying out the role include :
• arranging the funeral (although this is often taken care of by or in consultation with the deceased's immediate family);
• preserving the estate assets and, as appropriate, selling and disposing of property in the course of the administration;
• paying the debts, testamentary expenses and taxes of the estate;
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• keeping accounts, and records of all dealings including the assets of the estate;
• provide information about the estate to the beneficiaries. An executor is obliged to notify the beneficiaries named in the will and provide them with information regarding their expected inheritance, following probate or letters of administration having been granted;
• distributing the assets of the estate according to the terms of the will or rules of intestacy
• being aware of and dealing with claims made against the estate.
As an executor you may be required to obtain a grant of probate (if a will is held, or should the deceased have died without a will then letters of administration).
Depending on the assets held by the deceased personally, granting of probate gives the executors the legal authority to deal with the assets held by the deceased.
Whether probate is required is determined by the assets held by the deceased. The current threshold prescribed amount is the gross value of a person estate being $15,000 and/or property.
An affidavit to obtain a grant of probate is required to be signed by the named executors. The affidavit to obtain a grant of probate together with an application prepared by your solicitor with the original will is filed in the high Court.
If the application for a grant of probate is in order then the court will put its seal on the order and probate is granted.
An executor isn't obliged to make a distribution of estate funds until the expire of the 6 month period following the granting of probate or date of death.
Otherwise the executor may be personally liable, should a successful claim be made against the estate. Early distributions are possible, but an executor should obtain an indemnity from the beneficiaries.
It is not uncommon for an individual appointed as executor to also be named as a beneficiary under a will.
If the executor is also going to inherit, it is essential that the executor act in the interests of all named beneficiaries and be ever-conscious of the potential for a conflict of interest to exist.
Sound estate planning would involve the will-maker appointing a co-executor so that a second opinion can be offered if a conflict arises.
Depending on such matters including the wording of the will itself, the size of the estate and whether potential claims are made against the estate, the role of executor can be time-consuming and onerous.
More often than not, it is best for solicitors to be engaged.