An executor is the person named in a Will who the deceased chose to administer the estate. If there is no will, then someone must apply to the court to be appointed as administrator of the estate.
The executor or administrator is responsible for the deceased’s property and for payment of all outstanding debts and taxes from the estate funds before distributing the assets of the estate to the beneficiaries of the Will.
- Protecting and auditing the deceased’s assets and perhaps obtaining asset valuations;
- Applying to the Supreme Court for a grant of Probate or Letters of Administration;
- Contacting the beneficiaries of the estate to advise as to entitlements under the Will (or the next of kin in an Intestacy);
- Collecting and recovering the deceased’s assets;
- While assets are being collected, and debts paid, maintaining the assets of the deceased in the interim;
- Paying any debts of the deceased owing prior to death and any incurred during the course of the estate’s administration;
- Defending the Will of the deceased where litigation is commenced against the estate;
- Obtaining advice in relation to and attending to any tax liability of the deceased;
- If necessary, Forensic Accounting;
- Ensuring that a statement of assets and liabilities is maintained and provided to beneficiaries upon request and at the conclusion of the administration of the estate;
- Making a distribution of the deceased’s assets to those beneficially entitled in accordance with the Will or the Intestacy Rules.
An executor also acts as trustee of the estate in holding assets on trust for the beneficiaries, for example when beneficiaries are minors or are otherwise unable to hold their entitlements under the Will.
A trustee manages money, investments, or assets on a continuing basis for the benefit of certain beneficiaries according to the wishes of the deceased.
An executor must not make distributions to beneficiaries until he or she is sure that there is no likelihood of a claim being made for a share of the estate.
The executor’s first task is to determine the assets and the liabilities of the estate.
A solicitor appointed to manage the estate will usually request the executor send to their office the following documents and papers:
- Original death certificate once it has been received from the funeral home;
- Any cheque books or passbooks for the deceased’s bank accounts;
- Details of private health insurance and Medicare;
- Registration details for any vehicle or boat held by the deceased;
- Any accounts payable by the Estate; and
- Any other relevant documentation (including details of term deposits, life insurance policies and any documents held by the deceased’s accountant).
On receiving this information, a solicitor can then correspond on behalf of the executor with the asset holders such as banks, and the creditors, to determine the financial details so that a comprehensive statement of assets and liabilities can be finalised.
The role of an Executor is onerous, challenging, and often fraught with family tension. It is better to engage a solicitor who is familiar with the tasks involved, and without any emotional tensions to carry out the necessary tasks in the shortest possible time.
Don Macpherson is an expert in estate planning, management and disputes at Sunshine Coast Elder Law. Call 1800 961 622 or visit sunshinecoastelderlaw.com.au. or brisbaneelderlaw.com.au