Key Practice Areas
The Role of an Executor
Wednesday, December 18, 2019
When a person makes their will it is necessary for them to appoint at least one executor to carry out their instructions in the will.
It is possible to appoint multiple executors but the court will not give a grant of probate to more than four executors at any one time.
If you have been appointed an executor to act jointly with other persons then you should contact the other executors to administer the deceased person’s estate. If the other executor has died you may need to obtain a copy of their death certificate. It is possible for a co-executor to sign a form renouncing their rights as an executor.
If your co-executor is not co-operating in the administration of the estate you can apply to the court for a grant of probate for yourself only, and reserve the right for the other executor to also apply for a grant of probate if they choose to do so.
If you are appointed as an executor your duties will include locating the deceased’s original will and establishing the deceased’s assets and liabilities.
An executor will need to examine the deceased person’s debts and decide which debts should be paid and whether the estate has sufficient funds to pay the debts. An estate will be insolvent when it does not have adequate assets for the executor to pay the deceased person’s debts.
An executor needs to consider whether there are any outstanding tax liabilities owed by the deceased person, or by their estate for income received after their death. If the deceased was retired it could appear that there are no outstanding tax liabilities. But if the deceased person had funds invested in a term deposit or other form of investment they might have earned income which when added to their pension income during a financial year exceeds the tax-free threshold.
There may be delays in the administration of the estate while the deceased’s tax liability is established. Once an executor has paid the debts of the estate, the executor will then need to distribute the estate in accordance with the terms of the will.
An executor will need to consider whether any of the named beneficiaries died before the deceased person or otherwise failed to survive the deceased person for more than 30 days. If that is the case the executor will need to establish whether the deceased’s will specifies that the children of any beneficiary who predeceased them or did not survive for more than 30 days are not to take that deceased beneficiary’s gift.
An executor will often receive requests for copies of a deceased person’s will. Section 33Z of the Succession Act 1981 (Qld) provides that an executor is required to provide a copy of the will to a child or spouse of the deceased, any person named in the will and any person who would be entitled to a share of the estate if the person had died without a will. An executor will also need to consider whether they should or need to obtain a grant of probate of the deceased person’s will.
It is not always necessary to obtain a grant of probate but by obtaining a grant of probate an executor receives protection from liability in the event that a later will of the deceased is located. Generally if the deceased has more than $50,000 in a bank at the date of their death or owned shares then those assets will not be released to an executor without a grant of probate being obtained from the court.
An executor might find themselves involved in litigation as a result of someone making a claim for further provision from the deceased’s estate or claiming that the deceased person did not have capacity when they made the will or claiming that undue influence was placed upon the deceased person to make the will.
In these cases the executor is required to take reasonable steps to uphold the deceased’s persons will. In the case of a claim for further provision against the deceased person’s estate an executor might make a realistic decision to reach an agreement with a claimant rather than spend the estate on legal costs.
How We Can Help
If you are appointed an executor and require assistance to administer the estate or need to be represented in legal proceedings, Quinn & Scattini Lawyers have the experience to provide you with the best professional advice and service.
Our expert estate lawyers are available at any of our local offices.