If you’re writing your Will or someone close to you has started to plan their estate, you might have seen the term ‘executor’. The executor is an essential component of managing an estate after someone passes away and should be given the proper consideration before finalising.
What is an executor of a Will?
An executor of a Will in Australia is a person or people chosen by a Will-maker to carry out their final wishes after they pass away. The executor can be a partner, spouse, lawyer, trustee or the person’s adult children. It’s imperative to choose someone you trust as the executor of your estate.
What are the responsibilities of an executor?
The responsibilities of an executor are fairly straightforward. Depending on the complexity of the estate, the role includes administrative tasks, organising the funeral, distributing the estate and closing the estate. Here are six specific duties involved in the role:
1. Locating the Will
The first step of an executor is to locate the Wil. Sometimes the deceased person will have informed the executor of the whereabouts of their Will before dying. Other times, they can find a copy in the person’s important papers.
2. Organising funeral arrangements
Once they can locate the Will, the executor is responsible for organising the funeral based on the deceased's requests outlined in the Will. The executor should handle these arrangements should be done as soon as possible.
3. Obtaining Probate
The executor is responsible for applying for a grant of probate. Probate is the official recognition by the Supreme Court that the Will is legal and valid. When it comes to releasing any financial assets, most banks, super funds and insurance companies will require proof of probate.
4. Determining the assets and any debt
The executor will create an inventory of property that includes outstanding entitlements and everything the deceased owned. The executor should complete the property inventory as quickly as possible to protect the estate's assets.
5. Protecting the estate
Once the executor understands what’s in the estate, including property, debts, bank accounts, and heirlooms, they must protect the estate to prevent mishandling. If something happens to the estate, the executor could be liable.
6. Administer the Estate
After the executor establishes the estate and the funeral arrangements, they can distribute the estate to the beneficiaries. The estate assets and funds can include transferring specific gifts, establishing ongoing trust and paying any remaining assets to the beneficiaries.
Can an executor decline their duties?
The executor of a Will is under no legal obligation to accept the role. However, if the person chooses not to accept, they can renounce or resign from being the executor as long as they haven’t taken any steps the court would consider ‘managing the estate’.
If your executor wishes to resign from their role, they typically need to complete a ‘Renunciation of Probate’ form with the relevant state or territory. If more than one executor is listed, the responsibility falls to them. However, if there’s only one, the court may appoint an executor following intestacy rules.
Tips when choosing an executor
Choosing the right person to act as the executor of your Will is important. It must be someone you can trust, will act in good faith when managing your estate and uphold your final wishes to the best of their ability.
Here are a few tips when choosing an executor:
- Consider the complexity of your estate. The executor will be responsible for detailed administrative tasks such as applying for probate and preparing tax returns, so it’s important they can handle the responsibility.
- Consider any possible conflict between the executor and the beneficiaries of your estate. Ideally, you can choose someone unbiased toward the estate and its beneficiaries.
- Consider whether the executor will also be a beneficiary. Executors are allowed to be beneficiaries in the estate. However, it can cause administrative issues and personal conflict between them and other beneficiaries.
The executor of a Will is the person who will ensure that your loved ones see to your final wishes. Therefore, when choosing an executor, consider having more than one and their ability to manage the complexity of your estate.
If you’re still trying to decide whether you should write your Will now or wait, consider starting with an online Will. Willed allows you to write a Will in less than 15 minutes, giving you peace of mind for yourself and your loved ones.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.