What Does an Executor of a Will Have to do?

Experienced TGB Wills and Estates Lawyer Rod Behenna provides a step by step guide for the executor of a Will.

The executor is a person that the Will maker has nominated to be in charge of the administration of the estate following their death.

Usually the executor will be a family member or a trusted advisor. Hopefully the Will maker will have advised the executor of the appointment during their lifetime but that is not always the case.

Here is my step by step guide for executors:

1. Following a person’s death the executor’s first duty is to locate the Will.  A copy could normally be found amongst the deceased’s “important papers”. The copy Will would normally give you an indication of where the original may be – either at a lawyer’s office or with a trustee company.  The executor should contact the holder of the Will advising of the deceased’s death and confirm that they hold the original document.

2. It would be prudent to leave the original wherever it is for the time being and ask that a couple of “certified” copies of the document be sent to the executor.

3. If the deceased or the executor is holding the original Will it is important that its condition is not altered in any way.  In particular the staple should not be removed for copying purposes, it should not be written on nor should any glider clips or any other fastening devices be attached to the original document.  Doing any of those things will cause additional time, trouble and expense in administering the estate if an application has to be made to Court for a Grant of Probate (definition: see point 15).

4. The executor should familiarise themself with the contents of the Will.  Often the Will will contain a clause relating to required funeral arrangements.

5. The next duty is to make appropriate funeral arrangements either in accordance with the deceased’s wishes in the Will or in accordance with the family’s requirements.  The funeral director will usually make clear that the person ordering the funeral is responsible for the costs but most Wills provide that the funeral expenses are to be borne by the estate.

6. If the funeral has been “prepaid” or “prearranged” that funeral director should be contacted and any extra arrangements organised.

7. At an appropriate time discussion about relevant matters concerning the Will should take place with various family members. If applicable, business partners and beneficiaries should be identified and advised of their entitlements under the Will and, depending upon these circumstances, arrangements may need to be made to deal with any matters that require immediate attention.

8. As soon as possible the executor should take steps to identify and safeguard the assets.  For example a house should be made secure, insurance arrangements should be checked to see that they are adequate, credit cards should be located and destroyed, Banks should be advised of the death so they can freeze the accounts, advise Centrelink and re-direct mail.

9. Obviously anything valuable (jewellery, cash etc.) in the house should be collected and kept safe.

10. A list of the various assets should be compiled, including:

· Details of bank accounts;

· Other investments with banks, managed funds or financial institutions;

· Shares;

· Personal effects;

· Cars;

· House property;

· Any debts that are owing to the deceased;

· Any debts that the deceased owes to other people.

11. Extreme care should be taken with cars.  Do not let any beneficiaries have the use of the vehicle until it is clear that they have an entitlement to it and that appropriate insurance cover is in place.

12. If there is real estate involved, or if the value of the assets is substantial, it will be necessary to get a Grant of Probate. This normally means instructing a lawyer to act on your behalf in making an application to the Supreme Court.  The choice of lawyer is up to the executor(s) and whilst that is often the lawyer who prepared and who is holding the original Will, the executor is free to choose their own lawyer.  That obviously does not apply if a particular lawyer, trustee company or Public Trustee is nominated as the executor of the estate.

13. The executor would instruct the lawyer about what the assets of the estate are, and provide other required information that the lawyer will need to get a Grant of Probate.  This can be commenced before a death certificate is available, but the lawyer will in due course need to check some of the information on the death certificate, which would normally be issued about two weeks after death.

14. It would normally take the lawyer four to six weeks to verify all of the assets and requirements to enable them to be dealt with and to prepare the Court documents. At present, it is taking the Court about eight weeks after lodgement of the documents to issue the Grant of Probate.

15. “Probate” is an order of the Court authorising the financial institutions etc. to deal with the assets in accordance with the executor’s instructions – ie upon its production the bank accounts can be closed, the land transferred, the shares sold or distributed etc.

16. When Probate has been granted and the assets have been collected, any legacies (payment of specific amounts of money) mentioned in the Will should be paid and any debts attended to.

17. If any of the beneficiaries want any of the actual assets owned by the deceased given to them as part of their share (“distributed in specie”), arrangements need to be made as to the value of those assets, and the assets dealt with accordingly.

18. If there are any infants or people with disabilities as beneficiaries then their shares under the Will will need to be the subject of trusts set up for continuing administration by the executors in the capacity as trustees.

19. The deceased’s taxation affairs up to the date of death and then to the end of the financial year(s) need to be attended to.  That may involve substantial work in calculating possible capital gains tax particularly if the deceased held shares and did not keep adequate records.  The estate cannot be finally distributed until all taxation obligations have been satisfied.

20. When all debts (including tax) have been paid the executor should prepare some final accounting and submit that to the residuary beneficiaries when attending to a final distribution in the estate.

Rod has more than 40 years of Wills and Estates experience.

For assistance with your Executor, Estate Planning or Will matter contact your nearest TGB office.