Top 6 responsibilities for an executor of a Will

An executor of a Will is the person nominated to take care of a person's estate after they pass away. Your main role as executor is to represent the person who has passed away and manage their personal, financial and legal affairs as per their wishes. This is known as executing or administering a Will. 

What responsibilities does the executor of a Will have? 

Being appointed as the executor of a Will can be seen as quite an honour, but it can come with a lot of responsibility. An executor can also be held liable if certain errors are made when administering a Will, so it's important to understand your role and what's required.

Their are six main responsibilities you have as an executor of a Will: 

1. Apply for probate

Before you can officially act as executor of a Will, you first need to apply for a 'Grant of Probate' from the court. Probate ensures the Will is valid and that you have the court's permission to carry out your responsibilities as an executor.

This process can differ between states, so get in touch with our team if you need help getting started. 

2. Preserve the assets of the estate

You now need to properly preserve and maintain the assets of the estate until you can distribute them. This means that you have to:

• Secure and insure any real estate or other property that belongs to the deceased person. You need to do this until the property is sold or ready for you to distribute.
• Make sure that any cash remaining in the deceased person's bank accounts is accruing interest.

3. Gather the estate assets and pay liabilities

Locating all of the estate's assets involves tracking down quite a few important documents. Some of the documents you might need include:

• recent bank and credit card statements from the last two years
• building society account statements
• certificates of title for any real estate holdings
• latest rates notices for any properties
• mortgage documents
• share and debenture investment certificates
• life insurance and other insurance policy documents
• private insurance certificates (this may help pay for funeral expenses)
• unpaid debt notices
• registration papers and insurance documents for any owned or leased vehicles
• funeral account details
• any other documents you can find that specifically relate to the person's affairs.

4. Defend the estate during any legal proceedings

If someone decides they want to try and contest the Will in court, you will be involved in defending the estate. Your official title in these situations is, 'legal personal representative', but it's also a good idea to speak to a Wills lawyer.

While Will disputes heading to court is unlikely, it's important to be prepared and understand the common reasons someone may make a claim:

Family provision applications
More commonly known as 'contesting a Will', this is when a beneficiary of the Will wants an extra share of the estate. The most important thing to remember here is that as the executor, you may be personally liable for any successful claim. So, if there is any risk that a claim may be made, seek legal advice as soon as possible.

Caveats over a Grant
When someone believes that you aren't the best person to execute the Will, or that the Will is  invalid, they can put what's called a 'cavea't over the estate.  A caveat is a court notice that prevents certain things from happening without informing the person that requested the caveat.

5. Manage income tax affairs

Another top responsibility is to tie up the deceased person's affairs with the Australian Taxation Office, by:

• Registering the deceased's death
  Notify the Commissioner of Taxation that the person has passed away.
  
  
• Lodge a final tax return
  You need to do this if the deceased person was earning an income above the tax-free threshold before they passed away.
  
  
• Lodge a 'trust tax return'
  This is only necessary if the estate earns an income during the Will administration process.

We highly recommended that you work with a licensed accountant for this step.

6. Distribute assets

The final responsibility is to distrubte the assets to loved ones as instructed in the Will. Before you share the assets, remember to first:

• ensure every asset is accounted for
• properly preserve every asset
• wait for any time limits, for anyone wanting to contest the Will, to pass
• complete all tasks required by the ATO
   

What rights does the executor of a Will have? 

You have two main rights as an executor of an estate:

Compensation
Administering an estate can end up taking a lot of time, which you can be compensated for. You can apply for executor's commission,  which is calculated as a percentage of the value of the estate, typically between 0.5% to 3%, depending on the size of the estate and the amount of work required. The commission must be approved in writing either by the beneficiaries or the court.

The right to decline being executor
You are not obliged to accept the role of executor if you have been asked. If you decline, a different executor of the estate can take on your duties. If there isn’t another person named, you can apply to have a court-appointed administrator take over. 

If you need advice on administering a Will, our expert Wills and Estates lawyers can guide you through the process and ensure you make informed decisions.