Executor of a Will duties involve a significant responsibility, especially when dealing with the loss of a loved one. An executor is the person named in a Will to manage a deceased person’s estate (property, finances, etc.) and carry out their final wishes. The role involves important legal and administrative tasks. It can become even more challenging when you are grieving.
Below is an overview of an executor of a Will duties in dealing with a deceased estate. The information is general only and does not constitute legal advice. If you have been appointed an executor or cannot find a family member’s Will after their passing, an estate lawyer can provide the advice and guidance you need.
Step 1: The First Few Days
Your immediate priority is handling the practical matters after the death.
- Obtain the Death Certificate: You need to obtain the Death Certificate from the registry of Births, Deaths and Marriages in the relevant state or territory. The informant may also provide guidance if required.
- Locate the Will: You need to locate the deceased person’s original Will. It provides instructions and guides your actions as executor. It names you as executor and sets out how the estate should be distributed.
- Arrange the funeral: Some Wills contain specific funeral instructions. If so, you must follow them. Family members are also often involved in funeral arrangements. Funeral costs are usually paid from the estate.
- Secure the assets: As executor, you must protect the estate’s assets. This may include securing the home, ensuring valuables are safe, and confirming vehicles and other assets remain insured.
- Notify key people: You should notify beneficiaries named in the Will, as well as family members and close business associates of the death.
Step 2: The Formal Administration Process
The formal administration of the estate usually begins after the funeral and initial period of shock.
- Gather information about assets and liabilities: You must identify the deceased’s financial position at the time of death. This includes assets such as bank accounts, shares, property, and superannuation, as well as liabilities such as credit card debt, loans, and mortgages.
- Apply for a Grant of Probate: A Grant of Probate is a legal document issued by the Supreme Court. It confirms the Will is valid and authorises you to act as executor. A Grant of Probate is usually required to deal with significant assets such as real estate or large bank accounts. Applying for probate involves filing the original Will, a death certificate, and a statement of assets and liabilities. Different jurisdictions across Australia have different requirements. It is important to follow the correct process to avoid delays. An estate lawyer can advise whether probate is required and prepare the application.
- Advertise for creditors: You may need to place a public notice in a local newspaper or the Government Gazette. This allows creditors to make claims against the estate. This step helps protect you from personal liability if an unknown debt arises later. A lawyer can assist with this process.
Step 3: Paying Debts and Distributing the Estate
Once you have the Grant of Probate, you have the legal authority to administer the estate.
- Pay all debts: You must pay all legitimate estate debts before distributing assets. This includes funeral expenses, taxes, and other liabilities. Be careful here. If you distribute assets too early, you may become personally liable for unpaid debts.
- Attend to tax matters: You may need to lodge a final tax return for the deceased and a tax return for the estate if it earns income during administration. It is advisable to obtain tax clearance from the Australian Taxation Office (ATO) before making final distributions.
- Transfer assets: Once debts and taxes are paid, you can transfer assets to beneficiaries according to the Will. This may involve transferring property titles, dealing with banks, or selling assets and distributing proceeds.
- Keep a record of everything: As executor, you must keep accurate financial records. This includes all transactions from funeral expenses to final distributions. Beneficiaries are entitled to see how the estate was administered.
Timeframes and Professional Advice
The administration of a deceased estate can take time. A straightforward estate may take 6-12 months. If disputes or complex assets arise, the process may take longer.
The role of an executor carries significant responsibility. You are legally and financially accountable for your actions. It is possible to manage the process yourself, but professional advice can help ensure you meet your obligations. It can also reduce the risk of mistakes, delays, and disputes. A lawyer can guide you through probate and estate administration and provide support during a difficult time.
If you or someone you know wants more information or needs help or advice, please call 08 9336 6300 or email [email protected].