Leonidas Lawyers | Executors & Probate
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Executors & Probate

Has a friend or family member asked you to be the Executor of their Will?

 

The Executor has responsibility to manage the Deceased’s Estate in accordance with the terms of the Will, and ensure that the assets are protected in accordance with the laws and regulations that govern the administration of Estates in Australia.

 

An Executor is usually chosen because they have some or all of the following qualities and abilities:

  • Experienced in business matters
  • Familiar with the Deceased’s business, property and finances
  • Able to spend the time to perform their duties

What are the responsibilities of the Executor?
The Executor must ensure the Will, and in general the Executor must:

  • Apply for Probate;
  • Collect and Preserve the Assets (eg. ensure property and assets are secure and safe, determine the value of assets, arrange for the sale of assets, collect debts owing, locate bank books and bank statements, locate title documents);
  • Handle the funeral arrangements and pay for the funeral;
  • Pay debts, taxes and administration expenses of the Estate;
  • Organising the funeral, notices for the paper, flowers;
  • Lodge tax returns for the deceased and for the estate;
  • Set up any trusts;
  • Account to and Report to the beneficiaries;
  • Distribute the Estate assets according to the Will;

The duties of an Executor can be difficult, even more so when one is in the grieving process, but rest assured at Leonidas Lawyers we can guide you through.

 

Do Executors get paid?
It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you’re not a beneficiary then you can apply to the Supreme Court for commission. It will depend on the actual terms of the Will, and it is not unusual for a Will to have a term stating the Executor is to be paid for their time and expenses.

 

Do I need a Lawyer?
Legal Costs are normally covered by the Estate, and not paid by the Executor personally. The level of assistance that will be required would depend on the complexity of the Estate and the terms of the Will and consequently the duties required of the Executor. It is always a good course to get preliminary advice from a lawyer at an early stage.

 

What is Probate?
Probate in effect is a court order from the Supreme Court which recognises the Will to be valid and then provides the Executors with the permission to carry out their duties in relation to the Estate. An Executor should immediately commence carrying out their duties, however, certain duties will require the grant of a Probate to be carried out, for example, selling real estate, obtaining moneys from bank accounts.

 

What if there is no Will?
This is termed intestacy, and the law provides how the deceased’s assets will be distributed, after payment of debts. Instead of an Executor, there is an Administrator appointed by the Court. Usually, next of kin will apply to the court for Letters of Administration.

 

What if I’m not up to the job?
If you do not want the job of Executor you can resign, but once you resign that is final, and you cannot change your mind. However, with proper legal advice and guidance you should be able to handle the job. If there is a second appointed Executor, then you can share the job, if there is not second Executor, then you can apply to the court to appoint someone else. Clearly, for most people acting as an Executor is a first time experience.

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