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:
- The key executor responsibilities in Australia
- The legal risks and liabilities involved
- Whether you need a lawyer for assistance
- Common mistakes executors should avoid
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.
What is an Executor of a Will?
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. It’s important to understand the legal duties and expectations placed on executors in Australia to ensure you fulfill the role correctly and avoid liability.
Who Can Be an Executor?
In Australia, an executor can be:
- A family member or friend of the deceased
- A lawyer or solicitor
- A trustee company or professional executor service
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.
Key Executor Responsibilities in Australia
Locating the Will
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:
- The deceased’s personal documents
- Their lawyer or solicitor
- The Supreme Court probate registry (if the will was lodged there)
Arranging the Funeral
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.
Applying for Probate
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:
- The original will
- The death certificate
- An inventory of the deceased’s assets and liabilities
Once probate is granted, the executor has the legal power to manage and distribute the estate.
Identifying and Valuing Estate Assets
Executors must identify, secure, and value all assets belonging to the deceased, including:
- Real estate properties
- Bank accounts and investments
- Personal belongings (cars, jewelry, artwork)
- Business interests
- Superannuation and life insurance (if applicable)
They must also ensure that assets are protected by securing properties, maintaining insurance, and preventing unauthorized access.
Paying Debts and Taxes
Before distributing the estate, an executor must:
- Settle outstanding debts (e.g., mortgages, loans, credit cards)
- Pay final taxes, including income tax and capital gains tax (if applicable)
- Close financial accounts (bank accounts, subscriptions, utilities)
Executors should seek professional advice if they are unsure about the estate’s tax obligations.
Distributing the Estate to Beneficiaries
Once debts and taxes are settled, the executor must distribute assets according to the will. This could involve:
- Transferring property ownership
- Dividing bank account balances
- Handing over personal belongings to beneficiaries
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.
Legal Risks and Responsibilities of an Executor
Can an Executor Be Held Liable?
Yes, executors can be personally liable if they fail to administer the estate correctly. Common legal risks include:
- Failing to pay estate debts or taxes before distributing assets
- Making unauthorized distributions that go against the will
- Not keeping clear records of financial transactions
- Acting unfairly or favoring certain beneficiaries over others
If an executor makes mistakes, what happens if executors breach their responsibilities can include legal action from beneficiaries or creditors. Seeking professional advice can help minimize these risks.
Can an Executor Get Paid?
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.
Do You Need a Lawyer as an Executor?
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?
- If the will is contested (disputes among beneficiaries)
- If the estate has complex assets (e.g., businesses, trusts, international investments)
- If there are outstanding debts or tax complications
- If you are unsure about probate laws in your state
Using a professional service like Legal Finda can connect you with experienced estate lawyers to simplify the process and reduce stress.
Common Mistakes Executors Should Avoid
- Delaying the probate process leads to legal complications
- Distributing assets too early, before settling debts and taxes
- Ignoring beneficiary concerns, which can lead to disputes
- Failing to keep accurate records of financial transactions
- Not seeking legal or financial advice when handling complex estates
Being aware of these pitfalls can help ensure a smooth estate administration process.
Final Thoughts
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.
