What you need to know after being named as executor of a will

An executor is the person named in a will whom 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.

The executor or administrator’s duties include:

• protecting and auditing the deceased’s assets and perhaps obtaining asset valuations
• if necessary, depending on the assets of the estate, 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
• maintaining the assets of the deceased in the interim, while assets are being collected and debts paid
• 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
• having forensic accounting undertaken if necessary
• 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, where beneficiaries are minors or are otherwise unable to hold their entitlements under the will.

For infant beneficiaries, the trustee manages money, investments or assets on a continuing basis for their benefit.

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.

Very often, the executor can manage all of these matters themselves, but where they feel it is appropriate or necessary, they can engage a solicitor to carry out tasks in the estate.

The most obvious role of a solicitor is to obtain probate or letters of administration.

A solicitor appointed to manage the estate will usually request the executor send to their office:

• the original death certificate once it has been received from the funeral director
• any recent bank statements, cheque books or passbooks for the deceased’s bank accounts
• registration details for any vehicle or boat held by the deceased
• any accounts payable by the estate
• 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 with 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 often 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.

 Sunshine Coast and Brisbane Elder Law staff are experts in estate management, estate disputes and wills and other estate-planning matters. Call 1800 328 952 or visit brisbaneelderlaw.com.au or sunshinecoastelderlaw.com.au