The executor of a will plays an important role in administering the estate of a deceased person. Whilst the list of responsibilities of an executor is lengthy it is by no means difficult to understand. Using this article to understand the role of an executor will undoubtedly make your life easier and help you set up and administer a will in the correct fashion.
Glossary of terms
Testator/Testatrix: A testator is the person who has created a will. A testator will generally appoint an executor of their will.
Beneficiary: A beneficiary is someone who receives money or property following the administration of a will. There are usually numerous beneficiaries to a will.
Probate: Probate is a court order confirming that a will is the last valid will of the deceased.
Deceased estate: A deceased estate is the property and assets belonging to a person who has died.
What is an executor of a will?
The executor of a will is the legal personal representative of the deceased person and will act in respect to the wishes of a testator as set forth in the will upon the testator’s death. It is essential to understand that the executor’s relationship with the beneficiary is a fiduciary one. This means that confidence is placed on the executor by the beneficiaries to act with reasonable care and skill in administering the will.
Appointment of an executor
The executor of a will is appointed by the creator of the will, known as the testator. In most circumstances the executor is appointed in the will itself. It is wise to carefully consider who you appoint as executor of a will. The executor should be a trusted family member or friend and is usually one of the major beneficiaries of the will. In circumstances where close family or friends are unavailable or unwilling to execute a will it is advisable to appoint a trusted lawyer as executor. As an executor of a will has numerous duties it is often the case that a beneficiary is chosen as the executor. This is often because that what is left to the executor can act as consideration for the performance of their duties.
There are very few restrictions on who can be appointed as executor, these exceptions are limited to:
- The executor must be over 18 years of age, though appointing someone younger than the testator is strongly advised;
- The executor must be of sound mind.
Duties of the Executor
Whilst the duties of the executor will vary depending on the terms of the will, some more general duties exist that are essential for an executor to understand in order to properly administer the will and respect the wishes set forth by the testator.The duties of an executor stem from three general duties. These are as follows:
- carrying into effect the terms of the will;
- defending it where necessary;
- and applying for probate.
Funeral arrangements should be made by the executor as soon as possible after the death of the testator. Funeral expenses can be paid prior to obtaining probate. This is one of the key responsibilities of the executor of the will and is usually carried out following the funeral instructions provided in the will. Two further obligations of the executor are as follows:
- Respecting the wishes of the testator’s family and friends; and
- Paying off funeral expenses from the deceased person’s estate prior to administering property to the beneficiaries.
Locating the Will
It is a requisite that the executor locate the exact will and determine the exact beneficiaries of the will in order to determine the extent of each and every beneficiary. A final requirement is to determine the assets and liabilities of the testator’s estate.
Following from obtaining the will and locating the exact beneficiaries the executor is required to obtain probate of the final will and testament of the testator. Probate is a legal requirement that authorises the executor of a will to legally manage the deceased person’s estate. An application for probate to the Court must be made within 6 months of the deceased’s death and until probate is granted the assets of the deceased estate will be frozen and unable to be administered to the beneficiaries.
Administering the estate
Essentially, administering the deceased estate requires that liabilities and assets are directed where the will instructs them to be.
Following the grant of probate from the Court, in NSW the Supreme Court, it is beneficial that an executor opens a bank account in the name of the deceased estate and deposit their assets into it. This enables debts and liabilities, such as outstanding tax and administrations costs, to be paid off prior to directing money to beneficiaries.
Preserving the estate
Prior to distribution it is essential that the executor preserves the estate in a way that safeguards its assets against waste. In situations where the executor has let assets slip with the consequence of diminishing their value, the executor may face liability from a beneficiary or creditor. One of the primary ways of preserving the estate is to ensure that the estate is administered within the requisite time limit, usually within a 6 month period.
Legal advice is usually sought and is indeed recommended especially in situations where the estate consists of valuable real property that may need to be sold for market value.
Distributing the estate
Finally, and perhaps most importanty is the requirement to distribute the estate to beneficiaries, in accordance with the will. A distribution report is an essential document that enables an executor to show, in a transparent way, exactly where property in the deceased estate is to be directed, and what debts have been paid off prior to administration.
It is advisable that an executor obtains legal advice when administering a deceased estate, primarily for the reason that an incorrect administration may result in the executor incurring liability.
Following this practical guide you can see that carrying out the role of an executor is not so daunting a task as once thought. However, carrying out the role of an executor ought to be done in a precise manner in order to side-step liabilities from beneficiaries. For this reason legal advice is recommended for all executors, especially when administrating complex and highly valuable wills and estates. Lawpath can connect you to legal advice regarding wills and estates on our 650+ lawyer network through our quick quote portal.
“Unsure where to start? Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from one our network of 600+ expert lawyers or any other legal needs.”
the executor must be over 18 years of age, though appointing someone younger than the testator is strongly advised. the executor must be of sound mind