Recently a client of ours was asked to be executor of her good friend’s Will.  She called us in a minor panic as she had heard of it, she had no idea what being an executor actually meant!

Agreeing to be an executor is an important decision.  The main role of an executor is to carry out the terms of the Will.

The first thing an executor may be required to do is obtain probate for the Will.  Probate is a certificate from the High Court authorising the executor to begin dealing with the estate.  Estates that do not have any single asset over $15,000 do not require probate.  The cost of getting probate can be recovered from the executor personally if it was unnecessarily incurred.

The lawyer involved will prepare the necessary documents for you.  The executor signs an affidavit swearing that they will carry out their duties as executor.

More specifically, these duties are:

  • To arrange for the funeral of the deceased.

The manner of funeral is up to you as executor to decide, but people often put their preferences in their Will. Executors usually are guided by those wishes together with the wishes of the immediate family.

  • Make a list of all the assets.
  • Get all assets in.

You need to ensure the estate has enough money to pay for the funeral and other expenses.  This may involve transferring or selling shares owned by the deceased.  You also close bank accounts and cancel power, phone and other applicable accounts.

  • Pay funeral expenses.

These have to come out of the estate before any other expenses.

  • Pay testamentary expenses, debts and legacies.

Testamentary expenses will include court fees, valuation fees and other disbursements.  Debts include the power, phone and other everyday bills.  Legacies are specific gifts of money or property given under a Will.

  • Distribute the remainder of the estate to the persons entitled in accordance with the Will.

This is done after you are sure you have paid all expenses relating to the estate.

  • Keep accounts.

The executor is required to keep proper financial records and file tax returns.

Another important aspect of being an executor is dealing with any claims against the estate.  These may be claims by partners or children who feel they have not been adequately provided for in the Will or people who are seeking to enforce a promise or gift for services they performed for the deceased.  These must be resolved before the estate can be distributed.

An executor may distribute an estate six months after probate has been granted if no claims have been made.  Executors should be careful if distributing before the six month period has lapsed, as they could then be held personally liable for any claims against the estate.

The role of executor can be time consuming and you cannot charge for your time, unless there is a specific clause confirming you can (normally for professional exeuctors such as lawyers or accountants).  If the Estate includes investment or business assets, or overseas investments, it may take much longer to distribute than the six-month period.

If an estate grants a life interest to someone, the estate cannot be wound up until that person dies.  The executor’s role continues until that time.  Often a life interest in a certain property is left to the surviving spouse.  This gives them the right to live in the property for the rest of their life.

However, generally the lawyer handling the estate will do most of the work and minimise any risk for you.  They will ensure everything is done properly.  Fees for this service are paid out of the estate.