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1. What is an executor?

An executor is a person appointed by another in a will to act in respect of the estate of the testator upon his or her death. An executor is the legal personal representative of a deceased person. When a person dies without a will then the legal personal representative is known as “an administrator”. The information in the Kit relates only to executors and where the person who died left a will.

The appointment of an executor is only effective following the death of the will maker. Once he or she has died then if you are appointed by the will as executor you should decide very quickly whether or not you wish to accept the position. You are under no legal obligation to do so. If you don’t want to act as an executor the Kit contains information about how to “renounce probate”. The testator may have discussed the appointment with you but frequently the executor is unaware of the appointment until death.

You should read all this material before you decide whether or not you wish to accept the appointment. Most people accept. In many estates the tasks are not particularly difficult as long as you exercise common sense and take legal and accounting advice when reasonably required.

2. What does the executor have to do?

In the course of administering an estate, an executor will usually have to:

  • Apply for probate in some circumstances.
  • Determine what debts and liabilities have to be paid.
  • Assemble the assets which will be used to pay debts.
  • Work out the order in which assets have to be used to pay debts. In some cases this will be set out in the will, otherwise there are laws which tell you which assets to use first.
  • Lodge taxation returns for the deceased and for the estate.
  • In some cases, arrange for documents to show that the executor is the legal owner of certain types of assets before these can be sold.
  • Pay debts.
  • Distribute the assets to beneficiaries according to the terms of the will.

In some cases the executor will also be involved in making funeral arrangements.

3. What if there is more than 1 executor?

If there is more than 1 executor named in the will the forms need to be completed by all executors. It may be convenient to have only one executor proceed with the application in which case the other executor(s) may renounce their duties (see Renunciation of Probate below) or the application may be made in one executor’s name only. In this circumstance, the summons should include a clause that leave is to be reserved to the other named executors to obtain a Grant of Probate. The probate registry will also require proof that the remaining executors have been put on notice of the application and reserve the right to make an application at a later date.

4. What if there is more than 1 executor and the other executor has died or can’t be found?

In the event that the other executor has died, cannot be found, or is unable or unwilling to renounce probate, application can be made to the Supreme Court by the remaining executor or a beneficiary. In these situations, we recommend that you speak to a solicitor before making your application to ensure that the application is within the scope of this Kit. If Letters of Administration will be required, you will need to have a solicitor prepare your application.

5. How do I get the original will?

In order to perform your duties as an executor, you will need to have the original will. If it was not in the possession of the deceased, you must obtain it, by right, from the person or solicitor who holds it.

6. Should I have a ‘reading’ of the will?

The executor(s) can arrange to have a meeting of the family of the deceased and beneficiaries named in the will and explain the provisions of the will if they are not straightforward. This is not a requirement. Alternatively, it may be more practical to send a copy to anyone with a legitimate interest. If you do not do so, it may create suspicion and criticism which could lead to legal action against you.

7. Funeral Arrangements

These are at the discretion of the executor. Usually the arrangements are simply carried out by agreement between the family and in accordance with any express wishes of the deceased person.

If there are any difficulties then you should be aware:-

• The executor is entitled to custody of the body of the deceased and therefore makes decisions in respect of it;
• The executor is responsible for the disposal of the body;
• The funeral arrangements are at the discretion of the executor;
• Directions in the will relating to the funeral or body of the deceased are not legally binding.

If you contract with the funeral director make sure the cost will not exceed the value of the assets of the deceased otherwise you will be liable to pay the balance.

8. Can I sell real estate that belonged to the deceased before probate is granted?

Yes, contracts for the sale of land may be issued by the executor and exchanged before probate is granted provided the contract is conditional on the issue of the Grant and the registration of the title transfer documentation at the Land Titles Office in your State. Caution is recommended as there may be unexpected delays in the issue of the Grant which will delay the settlement of the sale.

9. Does the Court give me any help?

If any problem arises in respect of the administration or distribution of the estate or the meaning of the will then you can apply to the Court for its assistance. The Court cannot give you legal advice.

Call AussieLegal on 1300 728 200 for more information on the process and how we can assist you.

10. Can I be held personally responsible for what I do as an executor?

You are responsible for any loss which the estate incurs from your unauthorised acts.

The most difficult situation is where the deceased operated a business at the date of his death. Legal and other advice is considered essential in this case.Generally you should ensure that any debts you incur or may become liable to pay do not in total exceed the value of the assets of the estate.

If you see any problem arising at any time before you accept the office or during the administration of an estate we recommend you seek legal advice.

11. Do I have a right to any payment for my efforts?

There is no right to receive payment for your work as an executor unless the will provides otherwise, although any reasonable expenses you incur will come out of the estate. It is possible for you to apply to the Court for commission. You should seek legal advice if you intend to do this.

12. Can I purchase any of the assets myself?

The executor is generally not permitted to purchase any of the assets.
A purchase is possible if:-

• The will allows it; or
• All the beneficiaries agree; or
• The Court consents.

13. What if I don’t want to be an executor?

If you do not want to accept the office as executor then you should not take any steps which might indicate you have accepted the office (eg. arranging funeral, collecting assets or dealing with creditors) and you should “renounce” your right to be executor. This is done by signing a ‘Renunciation of Probate’ form which is then filed at the Court at the same time the application for Probate is made. The form should be signed by you before any adult witness and then should be filed at the Equity Registry of the Supreme Court with the will, or both documents should be given to any other named executor or the sole beneficiary named in the will.

14. Finalise the Estate

Income tax returns

The executor is required to furnish tax returns on behalf of the estate. Usually this means that you will have to file a return for the deceased up to the date of their death and later file a return for the estate for each financial year until the estate is administered.

You should also be aware that there may be capital gains tax considerations when completing the tax return and also in distributing the assets to beneficiaries. You should seek professional advice in this regard if there are any assets such as real estate or shares which attract capital gains tax.

Keeping accounts

Although it is not usually required of private applicants, in some cases you will be required to lodge accounts in a special format with the Court. It is therefore very important that you keep accurate and concise records of all financial transactions in respect of an estate of which you are executor and that those records are permanently retained - or at least retained until an informed release is given by all beneficiaries.

Pay outstanding debts

These may include amounts owing to the Tax Office, a funeral director, chemist, doctors, newsagent, electricity, gas and so on. Mortgages, hire purchases or other longer term debts might not need to be paid immediately. If you do not want to do so discuss options with the lender.

Transfer the title of real estate

The Title of real estate held in joint name (Joint Tenants) automatically passes to the other person (for example, the spouse of the deceased) upon death of the first person. You do not need a Probate Parchment for these assets. You should contact the Land Titles Office or Dept of Lands in your state to get the appropriate forms.

Other assets

These may include bank accounts, company share registers or debentures. Each of these institutions will provide the instructions that they require you to follow – each is a little different and usually includes a copy of the Death Certificate. For assets held in joint names (Joint Tenants) a Probate Parchment is not required. For assets held solely in the name of the deceased, or as Tenants in Common, a Probate Parchment is usually required.

AussieLegal offers a service that assists executors in making a personal application. Testimonials.

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  • background explanation of the law and the duties of an executor;
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