The Duties of an Executor when the deceased estate is located in NSW
An Executor is someone who has been appointed by the Willmaker (also known as the Testator) to carry out the directions that have been laid out within the Will and administer the Estate. The Executor can be an individual person or a trustee company.
The list of duties outlined below provides information designed to help Executors fulfil their duties. It is important to consider that the Executor's role, and his/her associated duties, will vary depending on the type of Estate. Some Estates are sizeable and complicated and require the help of a professional legal practitioner to assist the Executor in fulfilling their duties.
What are your duties as an Executor of a Will in NSW?
1. Funeral Arrangements - As an Executor in New South Wales (NSW), you will be required to arrange a funeral (burial or cremation) for the deceased. This must occur as soon as possible after death. The funeral arrangements are typically carried out as per any instructions left by the deceased in the Will. The Executor is usually responsible for the disposal of the deceased's body. Care should be taken to ensure that the deceased's wishes are carried out, and the Will should be checked for any specific directions. For example, in New South Wales it is an offence to cremate a body against the deceased's written direction.
While it is not necessary, the Executor should also seek agreement from the deceased's family before finalising any funeral arrangements. This is particularly important when religious beliefs need to be respected.
Any costs or expenses incurred from the funeral are paid from the Estate, before any of the beneficiaries receive their share. These costs must be reasonable. For example, it would be unreasonable for the Executor to plan an extravagant funeral when the Estate is small.
2. Locate the Will - Executors are also required to locate the original Will and confirm the Will's beneficiaries. The Executor will need to determine who the beneficiaries are and if they are still alive. The Executor will also need to identify the assets and liabilities listed as part of the Estate. If the deceased has not left their Will in the custody of a professional, or in the care of a family member or friend, locating the Will could be a lengthy process that involves searching through the deceased's personal possessions.
3. Obtain Probate - Probate is the legal process that proves the validity of a Will. Once the Will has been located and the beneficiaries have been confirmed, the Executor must obtain probate of the last Will and Testament of the deceased. To obtain a 'Grant of Probate' from the court the Executor must make an application within 6 months of the deceased's date of death.
Until probate has been granted the deceased's assets are completely frozen. However, the Executor will be given access to the deceased's bank account in order to cover the funeral costs and expenses, and any court fees related to acquiring the Grant of Probate.
For more information on this process please read our section on probate.
4. Administering the Estate - Once probate has been granted, the Executor has the authority to deal with the assets and liabilities of the deceased's Estate (that were listed in number 2). The Executor will still need to prove who they are in order to take full control of these assets and liabilities. This means they will need a copy of Probate, Death Certificate and any other forms of identification and documentation requested by the asset holders in order to officially register and transfer, or sell, the assets of the deceased.
It is important to note that any assets that the deceased held jointly with another party or person do not form part of the Estate and cannot be called in as part of the Estate. The deceased ceases to hold an interest in those assets at the time of their death, with the surviving party or person taking over the deceased's interest. While these jointly held assets do not form part of the Estate, they should still be identified by the Executor and disclosed to the court during the application for probate.
Superannuation also does not form part of the Estate. Superannuation is classed as a separate contract between the deceased and the superannuation trustee to pay particular beneficiaries, or a group of them, in the event of death.
5. Prosecution of Claims - Another responsibility that falls under the duties of an Executor is the prosecution of any claims the Executor may have against third parties, provided that the entitlement to pursue these claims did not cease upon death. For example, if the deceased loaned money to a third party or if the deceased's death was a result of negligence.
6. Pay Debts - Once the Estate's assets have been called in and all claims have been prosecuted, the Executor will need to pay off all the deceased's outstanding debts, i.e. the debts of the Estate. The Executor will be fully aware of any outstanding debts as part of the process they go through when applying for a Grant of Probate. The order and manner of which these debts are to be paid is determined by whether the Estate is solvent (there are enough assets to cover all debts) or insolvent (there are insufficient assets to pay all debts). Also, it is not up to the Executor to determine whether a particular debt has priority over another debt.
Regardless of whether the Estate is insolvent or solvent there are expenses that must be paid before any debts. These include those associated with the funeral, the testamentary process (probate) and administration (including legal fees).
7. Preserve the Estate - It is the Executor's responsibility to preserve the assets listed as part of the Estate from waste. This means the Executor must ensure the assets are not wasted due to their own action or inaction. For example, if the Executor fails to administer the Estate in the required time limit, resulting in a reduction of the Estate assets, the Executor may be held personally liable by a beneficiary or creditor for that reduction.
It is for this reason that Executors seek expert advice from experienced legal practitioners, like Turnbull Hill Lawyers, to ensure this does not occur. For example, if the Estate includes real estate that needs to be sold, the real estate must be sold for a price that is regarded as fair market value. The Executor will need to seek advice to determine what is considered to be fair market value before offloading the real estate.
8. Lodge Tax Return - The Executor may need to lodge an income tax return on behalf of the deceased. For more information about how to go about this please visit the ATO website or contact an accountant. In addition, the Executor may also be required to lodge an income tax return on behalf of the Estate for the period of the Estate administration.
9. Defend the Estate - Anyone who wishes to make a claim against the Estate has twelve months to do so after the deceased's date of death. If a claim is made the Executor is required to defend the Estate. We have experienced legal practitioners at Turnbull Hill Lawyers who can assist the Executor in relation to any such claim.
10. Distribute the Estate - Finally, the Executor must distribute the Estate in accordance with the Will. If the Will does not provide directions for disposing assets, the rules of intestacy will apply. This process may involve organising the transfer of assets, such as property, from the deceased to the intended beneficiary.
Generally, the Executor must administer the Estate and distribute all assets within 12 months of the deceased's death.
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Author: Adrian Corbould
Adrian Corbould is a Law Society Accredited Specialist in Wills & Estates Law. For more than 10 years he has helped hundreds of clients in contested estate matters.