What are my duties as Executor?

If you have been appointed as an executor then you have been chosen by the deceased person as trustworthy to administer the estate according to law.

An executor has a number of duties and should not act in the capacity of an executor if he or she is unable to complete all of these duties. Here are some of the most important:

1. Arrange the Burial or Cremation

It is common for the closest family member to arrange the funeral of the deceased person. At law the executor of the estate has the duty to ensure the body of the deceased person is dealt with following death. If the executor is not a close family member then it is advisable to take instructions from the close family as to the requirements. The executor will have last word on any dispute.

2. Obtain Probate

Probate provides the legal authority to call in and administer the estate. The Grant of Probate is obtained by way of application to the Supreme Court of NSW. Upon Grant all assets of the deceased person vest in the executor. Production of the Grant to those holding assets will be sufficient proof that the executor is duly authorised to collect those assets.

3. Call in the estate

Now that Probate has been obtained the executor must call in the estate. The Grant of Probate has given the executor the legal authority to do so but each asset holder will have their own transfer requirements. Financial institutions will require pro-forma declarations to be completed, the share registries transfer forms (unless the shares are being sold through a broker) and the Department of Lands a Transmission Application.

If the deceased person was owed money then it is the responsibility of the executor to prosecute those claims. This can be done by legal demand in the first instance and failing such commencing proceedings in the appropriate jurisdiction.

4. Preserve the Estate from Waste

To avoid personal responsibility the executor must ensure that they preserve the estate from waste. This means that an executor must act promptly and seek appropriate financial, legal and professional advice to ensure the estate is being administered appropriately. A good example of this duty is to ensure that assets are sold for fair market value and not at a fire sale, or to a family friend at a bargain basement price. If the estate consists of a business then the executor must be careful to ensure the will provides sufficient powers to continue the operation of the business. Legal advice should be sought and an application to Court made for a special Grant if required.

If the estate is contested the executor is under a duty to defend the estate but also to compromise and settle the claim if it is in the interests of the beneficiaries to do so. Prime Lawyers have particular experience representing executors and defending estates.

5. Pay liabilities of the estate

The executor must discharge any estate liabilities before making a distribution to beneficiaries. Schedule 3 of the Probate and Administration Act 1898 sets out the priority of debts and order of application of assets where the estate is solvent.

Funeral, testamentary and administration expenses, including the legal costs incurred in obtaining Probate rank in priority of other debts. An executor should ensure proper receipts are kept of all transactions.

The executor should be thorough to ensure all debts are discharged before proceeding to the final stage. This will include lodgement of final tax returns.

6. Distribute the estate according to will

The terms of the will set out the beneficiaries of the estate. The executor must distribute the estate to those beneficiaries in accordance with the provisions of the will, including any provisions which require the entitlement to be held upon trust until a vesting age. If the will has not been prepared by a solicitor it may be that the will does not include a residuary clause, or other contingency in the event that the named beneficiaries have not survived the deceased’s person. In those instances all or part of the estate may pass according to the rules of intestacy, which are set out in chapter 4 of the Succession Act 2006.

Prime Lawyers operates one of the largest uncontested probate divisions in New South Wales. We have assisted hundreds of executors obtain the Grant of Probate quickly, cost effectively and with as little hassle as possible so that the estate can be administered. If the estate is contested we have the experience to defend the estate vigorously.

If you have a question relating to Probate or if you are an executor looking to obtain the Grant of Probate then get in touch with your nearest office to see how we can assist.

We have wills and probate lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.