So you have found out that you are an executor? This is a very important role and one that should not be taken lightly.
You do not have to do it, but if you choose not to, then someone else will have to do it. This person will be whoever else the will-maker (“testator”) named in their will or if there is no one else named who is willing and able to act then someone who is eligible and successful in applying to the Court for a similar role.
Who do you have to do?
In a nutshell, being executor means that you are in charge of doing what the will says. You are the legal representative of the testator after his or her death. If this sounds intimidating, do not be alarmed; you are entitled to obtain assistance from professionals, such as lawyers and accountants, and have their fees paid from the deceased’s estate.
Ok, so you are in charge, but what do you actually have to do? First, you have to act in accordance with law and secondly you must act in accordance with the terms of the will, subject to the law. The law that deals with executors (and trustees, which it is likely you also are) is found predominantly in the Trustees Act (a piece of legislation) and in common law.
What are the tasks?
If you are not a lawyer, it is recommended you seek legal advice to interpret and explain the law to you. There is usually also a lot of paperwork involved – most of it very complex – and I am sure you would rather someone who deals with this work day in day out handle it for you!
As executor, some of your tasks include:
- Arranging the funeral;
- Determining and securing the deceased’s assets;
- Obtaining a grant of probate, if required;
- Finalising taxation obligations;
- Paying debts;
- Distributing the estate in accordance with the will;
- Assisting the Court with any litigation.
As executor, you should act promptly and diligently. You have a duty to the beneficiaries (i.e. the recipients) named in the will. You must act in their best interests. This includes, for example, making sure assets are secured and insured, and maximising the estate by investing funds or renting out assets where necessary and able.
Because you owe a duty to the beneficiaries, this means they can complain to the Court if you step out of line.
There are also time limits and time periods that need to be considered. Distribute the assets too early and you will be held personally liable if someone makes a successful claim on the estate. Plan on distributing the assets too late and you will be facing cranky beneficiaries.
What about probate?
And if a bank or other institution has said you need to “get probate” then if you have not already, you will soon discover why it is a very wise move to instruct a lawyer.
We are happy to guide you and advise you in your role as executor. We can do as much or as little as you like, and will keep you updated with every step. Contact Turner Freeman Lawyers to see how we can assist. Our South Australian office is located in Adelaide.