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Executor of a Will? What you need to know.

Mon 10th Jan 2022

Emotions are naturally high after a loved one passes away and the thought of stepping up to act as an executor of a Will can feel overwhelming. The last thing you want to do is stress about your new responsibilities, especially while you are grieving, so we've enlisted an expert in the space, Andrew Simpson, Maurice Blackburn's National Head of Wills and Estates Law, to guide us through how to navigate this difficult but important time.

What is an executor

Put simply, Mr Simpson described an executor's role as "representing the person who has passed away and wrapping up all of their personal, financial and legal affairs". The role of an executor begins as soon as the person has passed.

As an executor you have been appointed to a position of trust, and with that trust comes great responsibility. However, a lot can happen between agreeing to be an executor and becoming one. If you find yourself unsure on what to do or believe you don't have the capacity to fulfil the required duties, Mr Simpson recommends reaching out to experts like Maurice Blackburn who can help you understand what to prioritise first, guide you through the entire process and lighten your load.

Responsibilities of an executor

It is important to look after yourself at this challenging time by taking the necessary steps to grieve. Once you have said your final goodbyes, there are executor responsibilities that need to be followed in a timely manner.

Mr Simpson outlined the six main responsibilities as an executor:

  1. Preserving the assets of the estate
  2. Applying for Probate
  3. Gathering the estate assets and paying liabilities
  4. Defending the estate during any legal proceedings
  5. Managing the deceased person's tax affairs
  6. Distributing the assets

1. Preserve the assets of the estate

As executor, your authority to act on behalf of the estate comes from the Will.  This means that you can start acting immediately. The first step is to properly safeguard and maintain the estate assets until you can distribute them.

You should make sure that the deceased's real estate and other major assets are secure and insured.

Mr Simpson notes, "If any cash is remaining in the deceased's bank accounts, you will need to make sure it's accruing interest". Although seemingly minor, missing steps like this can leave the executor open to a personal claim.

In fact, because estate admin can be difficult, time-consuming and emotional, you can be liable for mistakes such as this. That's why it helps to talk to a professional who can guide you through the process, ensuring you make the right, informed decisions.

2. Apply for Probate

You will probably need to apply for a 'Grant of Probate' with the Supreme Court. This legal document confirms the validity of the Will and that you are in fact the legal person with authority to carry out the executor responsibilities.

If you are in NSW, VIC, QLD or SA, Maurice Blackburn offers online Probate applications. For other states and to discuss the most simple and stress-free way to apply for probate for your personal situation, it is best to get in touch with an experienced professional.  

3. Gather the estate assets and pay liabilities

Distributing assets is one of the main responsibilities as executor. Mr Simpson suggests that in order to do this properly (and legally), it is important to locate the assets. This requires a bit of ground work gathering documents, such as:

  • bank and credit card statements
  • building society account statements
  • certificates of title for any real estate holdings
  • rates notices for any properties
  • mortgage documents
  • share and debenture investment certificates
  • life and other insurance policy documents
  • private insurance certificates (this may help pay for funeral expenses)
  • unpaid debt notices
  • registration papers and insurance documents for any owned or leased vehicles
  • funeral account details
  • any other documents you feel are important, it all helps

4. Defend the estate during any legal proceedings

If someone decides they want to contest the Will, you need to defend the estate as 'legal personal representative'. While most disputes can be resolved out of court, it's always smart to be prepared.   "Having an experienced Wills and Estates lawyer by your side to help with negotiations is particularly important during this step," says Mr Simpson.

5. Manage income tax affairs

As mentioned earlier, another role as executor is to tie up the deceased person's legal affairs, this includes with the Australian Taxation Office. It is highly recommended that you engage with a qualified accountant for this step, but so you are across the process you need to:

  1. Lodge a final tax return for the deceased. This is generally only required if the deceased was earning above the tax-free threshold before they died.
  2. Lodge a 'trust tax return'. This is necessary if the estate earns an income during the estate administration.

6. Distribute assets

The final step. Once you are certain every asset is accounted for, have paid all debts and taxes and have waited the allocated time for anyone wanting to contest the Will, you are then ready to distribute the assets to the beneficiaries of the Will.

Take a deep breath for making it this far, because there was a lot of information to take in. If you are feeling overwhelmed and need advice on administering a Will, reach out to the experts, seek help if you need it and remind yourself you're doing the best you can during a difficult time.

Sometimes it can be easier to rely on a professional who has no emotional ties and whose only priority is to fulfil the wishes outlined in a Will accurately and efficiently. The importance of having a Will in place and your wishes known is the #1 thing you can do now to make all of the above steps as easy as possible for your family down the track and avoid a situation similar to what Maurice Blackburn's client, Ann had to go through.

Mr Simpson reveals "we see too many people who face issues… and our clients are just so relieved when they realise it is much easier than they thought".

The most important takeaway is that you know you're not alone during this difficult time. Friends, family, grief support services and industry experts are all there to help lighten the burden.