Executor of a Will

What is the role of an executor?

If you have been appointed the executor of a Will, your overall role is to represent the deceased person and wrap up all of their personal, financial and legal affairs.

If you need assistance or advice with administering a Will, our expert Wills and estates lawyers can help.

What are your rights and responsibilities as an executor?

Your main role as the executor of a Will is to collect the assets of the deceased person and distribute them to the beneficiaries. You will act as the 'legal personal representative' of the deceased individual, and may also be required to institute or defend legal proceedings on behalf of the estate.

Generally your role as executor of a Will is straightforward, but in some cases, especially when a person has done a poor job of their estate planning or neglected it entirely, it can be difficult and time consuming.

1. Gather assets and pay liabilities

As the executor of a Will, you will need to locate and closely review the following documents of the deceased individual to ensure that all assets and outstanding liabilities have been accounted for:

  • recent bank and credit card statements
  • building society account statements
  • certificates of title for any real estate holdings
  • latest rates notices for any properties
  • related mortgage documents
  • share and debenture certificates
  • life and other insurance policy documents
  • details of any private insurance, especially as it may cover funeral expenses
  • unpaid debts
  • details of motor vehicles owned or held
  • recent vehicle registration and insurance documents
  • funeral account details
  • any other relevant documents, especially those that may impact the deceased’s affairs.

2. Preserve assets of the estate

As the executor of a Will, you also have a duty to ensure that the assets of the estate are properly preserved and maintained.

This requires that you:

  • secure and insure any real estate or other property that belongs to the deceased person until sold or otherwise distributed in accordance with the Will
  • ensure that any money in bank accounts is accruing interest at a reasonable rate to benefit the residuary beneficiaries.

You should attend to these matters at an early stage to minimise the likelihood that any beneficiaries could make a personal claim against you should you fail to properly preserve the assets.

3. Defend estate during any legal proceedings

As the executor of a Will, you have an important role to play in defending the estate of a deceased person from any legal attack arising from conflict and litigation, the incidence of which has been increasing in recent years.

Although it may be unlikely that the deceased’s estate is subject to legal proceedings, there are two type of litigation that can arise, usually due to dissatisfaction with the terms of the Will by someone related to the deceased.

Family provision applications

These applications are commonly known as 'contesting a Will', and involve an individual applying to the court for access to an additional share of the deceased’s estate. The rules vary from state to state regarding who can apply for such a claim, and the time limits that apply.

As the executor of a Will, you may be personally liable for any successful claim if you distribute the assets of an estate before the relevant time limits have passed, so if there is any risk that such a claim may be made we recommend you seek legal advice.

Caveats over a Grant

Anyone who has an interest in the deceased’s estate is permitted to put a caveat over the estate in court, which usually happens when the executor of a Will is not the appropriate administrator for the estate, or there are concerns that the Will is not valid.

Such objections normally become obvious fairly quickly, and you should seek legal advice as soon as it does.

4. Manage income tax affairs

You will also be required to notify the Commissioner of Taxation of the death of the deceased person, and lodge a tax return on their behalf, if they were earning an income above the tax-free threshold prior to their death.

If the deceased’s estate earns an income in the period between the death of the individual and the final distribution of the estate, you may also be required to lodge a ‘trust tax return’.

It is highly recommended that you work with an accountant to obtain the appropriate advice and services regarding these issues, before any assets are distributed, as we are unable to provide taxation advice.

5. Receive an executor's commission

Due the amount of effort and troubles involved in acting as the executor of a Will, you are entitled to apply for an ‘executor’s commission’ once the estate has been concluded.

This commission is calculated as a percentage of the value of the estate, usually in the range of 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 as ordered by the court.

For additional information relating to acting as executor of a Will, or any other issue relating to Wills, estates and trusts, please contact us.

We have offices in Melbourne, Sydney, Brisbane, Perth, Adelaide, Darwin and throughout Australia.

We offer some of our Wills, trusts and estates legal services on a 'no win, no fee'* basis, which means that you don't pay our fees if we don't win your case.

All you need to know about Will disputes

Whether you are thinking of challenging or contesting a Will, or if you are the executor or beneficiary of a Will that is being challenged, our Will disputes lawyers can assist you.

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Our Will dispute and estates lawyers are experienced in winning fair compensation for our clients on a 'no win, no fee'* basis.

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