What is an Executor expected to do?
Appointing an Executor is not a decision that should be taken lightly as they have many responsibilities once a Will maker has passed. These include:
- Disposal of the body, obtaining the death certificate and locating the Will (if any).
- Obtaining a Grant of Probate for the Will of the deceased.
- Calling in the assets of the deceased.
- Paying the debts of the deceased’s estate.
- Distribution of the estate.
Disposal of the body, death certificate and Will
A common misunderstanding is that the deceased’s family is responsible for disposal of the body. In reality, unless contrary intentions are expressed in the Will, the Executor (if more than one, the Executors, jointly) are responsible for making arrangements for the funeral or cremation of the deceased. Unless the Will specifically sets out certain burial wishes, the Executor, usually, at their own discretion makes arrangements to dispose the body.
More often than not, funeral homes – as part of their services – will Apply for the Death Certificate via Service NSW, but sometimes this responsibility also falls onto the shoulders of the Executor.
An integral part of managing the deceased’s estate is to firstly locate the last Will and Testament of the deceased, which appoints the Executor. In most cases, the Will maker would have already informed the Executor(s) where the original Will is located, which is often in the deceased’s solicitor’s safe custody facility. Ivy Law Group provides a safe custody facility as part of our Will services.
Obtaining a Grant of Probate
In the event that a person dies intestate (or without a valid Will), an administrator applies for a Grant of Letters of Administration. However, as this article considers Executorial duties, Executors must apply to the Supreme Court of their relevant jurisdiction (for example, the Supreme Court of New South Wales) for a Grant of Probate.
Generally, an Executor should be aware of the following timeframes or deadlines where Probate is concerned:
Lodging a ‘Notice of Intention to apply for Probate’ via the Supreme Court Online Registry (Probate Notice).
Before the end of 14 days of the date of death.
Application for a Grant of Probate
After all necessary information relating to the deceased’s estate, including assets and liabilities, have been collected by the solicitor for the Executor, an application for a Grant of Probate will need to be lodged with the Supreme Court.
· After 14 days of publication of the Probate Notice.
· Before the end of 6 months from the date of death after which the Executor must provide an affidavit in support explaining the delay[i].
Click here to view the Probate Registry in the Supreme Court’s updated processing times for Probate applications.
Distributing the assets of the estate to the intended beneficiaries
· After 30 days of publication of the Intended Distribution Notice.
· In any case, after 6 months from the date of death to distribute the assets of the estate to avoid personal liability.
Probate gives the Will legal validity so that an Executor can administer the estate in accordance with the deceased’s wishes under their Will. Where Probate is required, the Executor cannot administer the estate or complete their duties under the Wills such as by collecting, or realising, the deceased’s assets, without first obtaining a Grant of Probate.
A Grant of Probate gives the Executor of the Will the authority to deal with the assets and liabilities of the estate in accordance with the terms of the Will and the law. Asset holders such as banks, insurance companies or similar generally require Probate before they can release the assets of the estate to the Executor.
Probate is especially required where real property that was owned by the deceased, either solely or with co-owners as ‘tenants in common’, is to be transferred directly to a beneficiary or is required to be sold, or otherwise disposed, to repay debts secured by the mortgages (if any) registered on title as well as repay other debts and testamentary expenses (if any).
Call in assets of the deceased
After Probate has been granted to the Executor of the deceased’s Will, the Executor must commence administering the deceased’s estate by calling in and gathering all of the deceased’s assets (not held jointly with another person or entity) as they pass and become vested in the Executor.
The manner in which such assets are called in is dependent on their type and how they were owned by the deceased at the time of their death. Common documentation required in gathering assets are documents relating to accounts, property, shares and dividends owned by the deceased.
In calling in the assets, the Executor does not have any right to ownership over them, but rather their main purpose is to administer the estate and distribute the assets to the beneficiaries as outlined in the Will.
Sometimes, an Executor may need to deal with claims made by potential claimants against the estate, which could be claims by beneficiaries for greater provision or third parties claiming provision from the estate (known as a family provision claim) of the deceased as well as claims by third parties for debt recovery for alleged debt owed by the deceased during their lifetime. Other times, this part can be skipped completely.
Paying the debts of the deceased’s estate
Once all of the deceased’s assets have been called in, the Executor must ensure any outstanding debts and liabilities of the deceased are paid (for example, unpaid accounts or taxes). Generally, these should not come as a surprise to the Executor, as these debts or liabilities would have been disclosed to the Court when making the application for a Grant of Probate. Common debts of a deceased’s estate can include funeral expenses, legal expenses and other testamentary expenses.
Depending on the nature of the estate, dealing with its debts can be complex and may require the Executor to obtain independent financial advice, in addition to legal advice, when determining the validity of, and order of priority in paying such debts. This is done as a way of safeguarding the estate from potential creditors taking legal action against the estate for non-payment of the debt.
Our experienced Wills & Estate Lawyers have extensive experience in this unique area of the law and are able to provide tailored legal advice on administering the deceased’s estate and payment of any outstanding debts.
Distribution of the estate
An estate can only be distributed to its beneficiaries once the assets have been called in, and the liabilities of the estate have been paid.
An Executor can make interim distributions to the beneficiaries in some circumstances[i] provided the Executor has taken careful and reasonable steps and obtained proper legal advice from a Wills & Estates Lawyer before making any distributions. In any event, the Executor is responsible for maintaining records of the distribution of the assets to beneficiaries, including receipts and expenses incurred in transferring the asset to the beneficiary.
In some circumstances, the distribution of the assets can occur without Probate and as such, can be distributed according to the Will of the deceased after the liabilities of the estate have been paid. However, and where a Grant of Probate is required, the Executor must also publish an Intended Distribution Notice prior to making any distribution of the estate.
Different types of assets will have different rules applied when transferring property, whether it be real or personal. Therefore, it is always important to obtain legal advice prior to fulfilling your duties as an Executor.
Get expert legal advice from a Wills & Estates Lawyer
Our Wills & Estate Lawyers are here to assist, whether you are an Executor requiring legal assistance in fulfilling your duties, you are the Will maker wishing to manage your estate, or a beneficiary intending to claim on a Will.
Call us today on 02 9262 4003 for a confidential no-obligation consultation or submit an online enquiry to get started.
The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.
Geeti is an integral member of the Ivy Law Commercial and Estate Planning team, acting on a broad range of matters including business sales and company acquisitions, capital raising, contract law, family provisions and estate planning.
Geeti is passionate about helping her clients achieve optimal outcomes and is highly regarded for both her empathetic nature and strong commercial acumen.