Tips and Traps for Executors

Being an Executor in charge of managing an estate is a big responsibility. TGB’s Sarah Mitchell writes about four important considerations.

Finding out you have been appointed the executor of a Will can be daunting. It means someone, often a family member or close friend, has made you in charge of their affairs after their death. They have deemed you to be best suited to carry out their wishes as expressed in their Will. An honour, and a significant responsibility.

You may have already read Rod Behenna’s article “What does an executor of a Will have to do?”. If you haven’t done so, that’s a great place to start.

In carrying out the role of an executor, there are some things to keep at the forefront of your mind, what you might call ‘tips and traps’.

1. Get legal advice

Often, and especially initially, trying to work out exactly what needs to be done can be overwhelming. An experienced Wills and Estate lawyer can provide you with advice tailored to your particular circumstances, and set you on the right track.

You may decide to engage a lawyer to help you prepare the necessary Grant of Probate or Letters of Administration documentation which can be tricky given the technicalities of the law in this area. Your lawyer can also help you generally with the administration of the estate if you don’t have the time or inclination to perform the work yourself; work which can be time consuming and often complicated.

Having the support and guidance of a lawyer when dealing with beneficiaries can also provide peace of mind.

2. Whatever you do, don’t touch, change or alter the original appearance of the Will

When the Will gets sent to the Court to be checked over and proven as the last original Will of the testator (the testator is the person who made the Will), the Court is on high alert for anything that may suggest the Will is not the last original Will of the testator or has been tampered with in any way. Therefore, don’t mess with the Will! Don’t undo the staples then staple the Will back together. This is crucial. If the Court suspects the Will has been tampered with, this will need to be investigated and explained through the provision of Affidavits etc. As a result more time is needed to finalise the estate and more costs are incurred.

Keep the Will in your possession and control where possible so you can ensure third parties (such as banks) don’t have the opportunity to remove staples. If you have a lawyer helping you, the original Will is probably safely stored away until it is needed to be sent to the Court.

3. Keep beneficiaries informed

Make sure the beneficiaries are kept up to date. Set up a regular diary date to contact each beneficiary.

By keeping beneficiaries informed you do your best to avoid complaints and general angst. Regular communication is the key.

4. Make sure adequate insurance is in place and kept up to date, and beware ‘unoccupied clauses’

If the assets in the estate include real property, make sure there is adequate house and contents insurance in place.

Check the policy to make sure that it provides adequate cover for your situation. For example, is there an ‘unoccupied clause’ in the policy? If the property is left vacant for a certain period of time, will there be implications for insurance coverage?

If you don’t have a copy of the policy that applies, contact the insurance provider and request a copy so you can check the policy terms.

Finally, refer to point number 1. Make an appointment to see a lawyer in my team. We would be pleased to assist you.

Sarah Mitchell is a lawyer at leading law firm Tindall Gask Bentley. To arrange an appointment contact one of TGB’s offices or register online here. 

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.