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What is the role of an executor, and who should you pick?

Whilst being named someone’s executor can be viewed as an honour and a privilege, the role comes with significant responsibility.

As an advisor, I generally encourage my clients to consider a few matters before they select their executor.

For example, does the person get along with everyone in the family? If not, are they likely to respect advice and acknowledge procedure? Do they have experience managing funds? Are they likely to seek advice on matters they lack experience and knowledge on?

Acting as an executor is not just about ticking boxes. It can be a confronting role, especially if there is a claim made against the estate, or a beneficiary that is particularly difficult.

Before selecting who should act as your executor, it helps to know what role the executor has in your estate, and the things that they have to do.

Below is a summary of the tasks that an executor must usually attend to.

Locating the Will 

If the whereabouts of a deceased person’s Will is not already known, normally the first task is to locate the original Will.

This task may require a search of your home, personal belongings and paperwork or contacting your accountant or solicitor.

To save an extensive search for your Will, it is beneficial to at least notify your executor that you have appointed them and let them know there whereabouts of your Will.

The funeral

The executor is responsible for your funeral arrangements, including whether there is a burial or cremation.

Organising a funeral can be a confronting task for an executor, therefore it is useful to include in your Will or a personal note to your executor stating any specific requests and your preference for burial or cremation.

As a matter of practice, if the executor is someone removed from the family, I would normally recommend to them that they consult the family in relation to the funeral (as much as reasonably possible) with the family to avoid any unnecessary disputes.

Determining the assets

The executor must ascertain the assets and liabilities of the estate.

Once the executor has received a Death Certificate, they will have to enquire with the various banks and institutions to determine what accounts exist, the balances, any loans, mortgages, credit cards etc.

Applying for probate

Once the executor has an understanding of the assets and liabilities of the estate, it may be the case that they must make an application for probate.

What is a grant of probate?

Probate is an order of the Court in favour of the executor in relation to the last Will.

Once the executor has received a grant of probate, they will be entitled to call in and deal with your assets including closing bank accounts and receiving the funds and transferring any property to their name as personal representative of the estate.

Dealing with any claims against your estate

If there is a risk of a claim against your estate, your executor must address the claim.

In the case where an eligible person (such as a spouse or child) has been left out of the Will, the executor may receive a request for a copy of the Will and information on the assets and liabilities of the estate.

It is important that an executor does not ignore any potential claims against the estate, but rather deals with them and seeks advice if necessary.

Taxation

The executor must ensure that any individual tax returns of the deceased are finalised (up to the date of death), as well as any tax returns are lodged on behalf of the estate.

Even if an executor receives advice that a tax return is not necessary, I generally recommend that a Notification of Deceased Person is lodged with the Australian Taxation Office.

Distribution of the estate

The time to administer an estate can vary depending on the assets and liabilities and whether there is a claim against the estate.

However, an executor should aim to complete the administration and distribute the estate to the beneficiaries within around 12 months from the date of death.

If you have been named as an executor and require any assistance, please do not hesitate to contact us.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Chloe Kopilovic

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Chloe Kopilovic

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