An executor plays a crucial role in administering a deceased person’s estate, ensuring that their final wishes, as outlined in their will, are carried out according to Australian law. If you have been appointed as an executor or are considering who to appoint, it is essential to understand the legal responsibilities and obligations that come with this role.
This guide will help you understand:
By the end of this article, you’ll have a clear roadmap of what to expect if you are given the role of an executor in Australia.
An executor is a person appointed in a will to manage and distribute a deceased person’s estate. This can include handling financial matters, settling debts, paying taxes, and ensuring that assets are distributed to the rightful beneficiaries.
The role of an executor is both an honor and a responsibility, requiring a thorough understanding of legal and financial procedures. Executors may act alone or with co-executors, depending on how the will is structured.
In Australia, an executor can be:
Executors should be trustworthy, responsible, and capable of handling financial and legal matters. It’s also recommended to choose someone who is willing and able to take on the role, as it can be time-consuming and complex.
The first step for an executor is to locate the deceased’s most recent will. This document outlines the individual’s final wishes, including how their estate should be distributed. If you are uncertain where to find it, check:
Although not a legal requirement, many executors handle funeral arrangements. The deceased may have left instructions in their will regarding their preferred funeral or burial/cremation wishes. Executors should check whether the estate covers funeral costs or if family members need to contribute.
Probate is the legal process of validating the will and confirming the executor’s authority to administer the estate. To obtain a Grant of Probate, an executor must apply to the Supreme Court of their state or territory.
The application generally includes:
Once probate is granted, the executor has the legal power to manage and distribute the estate.
Executors must identify, secure, and value all assets belonging to the deceased, including:
They must also ensure that assets are protected by securing properties, maintaining insurance, and preventing unauthorized access.
Before distributing the estate, an executor must:
Executors should seek professional advice if they are unsure about the estate’s tax obligations.
Once debts and taxes are settled, the executor must distribute assets according to the will. This could involve:
If there is no valid will, the estate will be distributed based on state intestacy laws. In such cases, the executor’s role may become more complicated, requiring court approval for asset distribution.
Yes, executors can be personally liable if they fail to administer the estate correctly. Common legal risks include:
If an executor makes mistakes, beneficiaries or creditors may take legal action against them. Seeking professional advice can help minimize these risks.
In Australia, executors are not automatically entitled to payment unless the will specifies compensation. However, they may apply for an executor’s commission through the court if the role is particularly demanding.
While it’s possible to manage an estate without legal assistance, many executors choose to work with lawyers or estate specialists to ensure compliance with legal requirements.
When Should You Hire a Lawyer?
Using a professional service like Legal Finda can connect you with experienced estate lawyers to simplify the process and reduce stress.
Being aware of these pitfalls can help ensure a smooth estate administration process.
Acting as an executor is a significant responsibility that requires patience, organization, and legal knowledge. While the process can be challenging, the right guidance and resources can make estate administration more manageable.
If you’ve been named an executor and need legal assistance, consider using Legal Finda to connect with trusted estate lawyers in Australia. Having expert support can help ensure you fulfill your duties correctly and avoid potential legal risks.