Wills Lawyers NSW

An Executor is the person appointed under the terms of a Will to ensure that a deceased person’s wishes are carried out in accordance with their Will.

An executor’s duties include:

  • making funeral arrangements;
  • identifying the deceased’s assets and ensuring their security;
  • identifying any debts including any tax payable;
  • making an application for a grant of Probate with the Supreme Court, if required;
  • paying all debts and tax from the assets;
  • and distributing the balance of the assets in accordance with the deceased’s Will.

What do I do if I don’t want to carry out the role of executor?

If you have been appointed as an Executor, but you do not wish to carry out that role, you can renounce your appointment by signing a form that will be filed with the Supreme Court with the application for Probate.

Do I receive payment for carrying out the role of executor?

Sometimes an Executor can receive payment for their services following an application to the Supreme Court. However, if the Executor received a benefit under the terms of the Will this will usually be presumed to be payment.

What is the usual process in carrying out the role of executor?

Until Probate is granted the deceased’s assets are frozen and an Executor is only able to access the deceased’s bank account to pay funeral expenses and any court fees relating to the grant of Probate.

Generally a grant of Probate is required however, if the estate is small (say, less than $15,000.00), or if the deceased held all their assets jointly with another person or persons (including real estate held as joint tenants), a grant of Probate would not be required. Jointly held assets (including property held as joint tenants) become the surviving joint owner’s asset upon death and therefore, those assets are not transferred in accordance with the deceased’s Will.

If a grant of Probate is required, a Lawyer, who usually assists the Executor through the estate process, will prepare the application to the Supreme Court. Before this application can be prepared, the Executor has to identify the deceased’s assets and liabilities. Once this occurs, the application for Probate is prepared, which sets out the deceased’s assets and liabilities and the values of these and also includes other evidence relating to the death and the Will. If the Supreme Court is satisfied that the application relates to the deceased’s last Will, and that the application is supported by relevant evidence, it will generally grant Probate.

Once Probate is granted, the Executor can proceed to administer the estate. Administering the estate in simple terms involves obtaining any monies from financial institutions, selling or transferring property as required, paying debts and tax and distributing the proceeds of the estate in accordance with the Will.

Prior to distribution of the deceased’s assets it would be prudent for the Executor to attend to a couple of further matters.

Firstly, obtain expert accounting advice in relation the estate’s tax liabilities, including Capital Gains Tax. The Executor could be personally liable for any unpaid tax.

Secondly, advertise in the local paper the fact he or she is going to distribute the assets of the estate and giving any person who believes they have a claim on the estate one month to make the claim. The law protects an Executor who advertises as such from claims by creditors and other persons of which the Executor is unaware at the time of distribution however, such claimants may be made against the beneficiaries (including the Executor if he or she is also a beneficiary) of the estate.

This is a brief overview of an Executor’s duties. If you would like to receive a copy of our Executor’s Guide, please contact our Wills & Estates Team.

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