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8 Key Things You Need to Do if Named as an Executor of a Will

april blog 1

When someone dies, the property they leave behind is called their estate. Assuming the deceased made a Will, this document usually names the Executor who is to be the person (or persons) who will be legally responsible for collecting the estate’s assets, paying off its debts and liabilities and distributing the net residual to the beneficiaries named in the Will.

An Executor only acts as a representative and is not personally liable for the deceased’s debts and liabilities. However, the role carries the legal duty to secure the estate for the benefit of the beneficiaries. It is not without personal jeopardy if this duty is not carried out as required. Therefore, it is important to be aware of what is expected as there is a good deal of responsibility involved. How does anyone go about beginning the process of performing such a role? Set out below are some of the key things an Executor needs to pay close attention to.

1. Obtain copies of the Will

The deceased will likely have advised the person they wish to be their Executor of their nomination and given them a copy of the Will or where to locate it. This may well be with their solicitor. Either way, it is necessary to locate the deceased’s last Will and Testament, which normally nominates the Executor or Executors.

2. Attend to the deceased’s needs

Unless there are contrary intentions expressed in the Will, the Executor(s) are responsible for making the deceased’s funeral arrangements according to any expressed wishes.

The Executor may have to apply for a death certificate if not obtained by the funeral director. 

3.  Apply for a Grant of Probate

Depending on the nature of the assets, and whether they are solely in the deceased’s name, a Grant of Probate will need to be applied for in the NSW Supreme Court. This is a Court Order validating the deceased’s Will and other documents. The Court will need the most current Will, a death certificate and an inventory of the assets and property belonging to the deceased. The application must be made within six months of the date of death.

Probate gives legal validity to the Will so that the Executor can then commence with administering the estate in accord with the deceased’s instructions in their Will. The Executor cannot administer the estate or complete their duties without first obtaining a Grant of Probate.

There are some exceptions where Probate may not be necessary. For example, if the deceased only owned property with another person as a ‘joint tenant’, then the deceased’s share of the property does not form part of the deceased’s estate and automatically passes to the survivor. Sometimes organisations may give access to the assets they retain if they are below a certain threshold and will accept alternative documentation.

Getting the procedural issues right will help protect Executors from personal liability for claims.

4. Locate and manage the estate’s assets 

After Probate has been granted, the Executor must call in all of the deceased’s assets. The purpose is to prepare for the distribution of the assets to the beneficiaries as outlined in the Will. 

The home and possessions need to be made secured as soon as possible. The insurance company needs to be informed. They will advise on how often the property needs to be checked and any other requirements they have to maintain cover on it.

5. Pay the estate’s debts and liabilities

Having called in the deceased’s assets, the Executor must ensure any debts and liabilities are settled, including funeral expenses. This may be complex in some circumstances, with priorities to be considered.

The relevant financial institutions, other billing companies and agencies need to be advised. This will assist in managing and closing accounts as appropriate. Proof of death is likely to be required by these bodies.

6. Contact the beneficiaries

The Executor is responsible for contacting those named in the Will as beneficiaries and informing them that they are due to inherit from the deceased even though it may not be possible to give an exact value immediately.

The role also includes ensuring the right assets are given to the right people. It is possible a beneficiary has died themselves.

7. Distribute the estate to the beneficiaries

Once the assets have been accounted for and the debts and liabilities are paid, the Executor is in a position to distribute the balance to the beneficiaries. This is one of the largest responsibilities of an Executor. The Executor must maintain records of the distribution, including receipts and notes of any expenses incurred in transferring an asset to a beneficiary.

8. Do not rush the administration process

The Executor’s natural inclination may be to try and make everyone happy and distribute the assets as quickly as possible. However, if crucial steps are missed in haste to complete the process, the Executor may become personally liable, so care needs to be taken.

Moreover, disputes can happen. Some beneficiaries may be unhappy with their share. Family members may be aggrieved to have been left out completely or are prepared to challenge the Will because they believe the deceased was not of sound mind when they wrote the Will or subjected to undue influence. If the Will is challenged, the Executor has to act as the defendant and will need to gather as much evidence as possible to counter the claim. In these circumstances, all the assets need to be held onto until the disputes are resolved.

Contact our Probate & Executor Solicitors in Sydney, NSW

Szabo & Associates Solicitors have many years of experience in advising on all aspects with regard to Wills, Probate and in assisting Executors to fulfil their considerable responsibilities. If you have any questions or need our assistance in these matters, please call us on 02 9281 5088 or fill in the online contact form.

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