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It’s often said that there are only two certainties in life: death and taxes. Dealing with death is always difficult, but it can be less challenging when the person who has passed away has left their affairs in order. This includes the deceased person having made a final Will and appointing a person or organisation as executor of their Will. We will explore what it means to be an executor of a Will further in this article.

What is an Executor of a Will?

Usually an executor of a Will is an individual or organisation that has been appointed in the Will of the Will-maker (known as a ‘testator’ or ‘testatrix’). Sometimes where the Will-maker has not nominated an executor or there are issues with the appointment, a Court will appoint an executor.

The role of an executor is to give effect to, and carry out the instructions and wishes of the deceased as stipulated in their Will. 

Often people will name their next-of-kin, a trusted friend, or an advisor as the executor of their Will. This appointment can present a number of complexities and is a decision that must not be made lightly.  

Being an executor of a Will can be complicated, time consuming, and overwhelming, particularly when an executor is one of the family members grieving the loss of a loved one. 

Given the responsibilities of the executor, it’s important to choose an executor who is capable of fulfilling their duties during testing times, can maintain independence if there are disputes, and who understands the legal, financial, and taxation implications that can arise. Further, a Will-maker should consider how naming one person as executor over another person may impact the dynamic of familial relationships and create additional stress and tension.

What are the Duties of an Executor of a Will?

Being an executor of a Will comes with certain responsibilities, the most important of which is that the executor carries out the wishes of the deceased person in line with the instructions provided within their Will. 

For some, administering someone’s estate upon their death can be a simple and straightforward matter, but for others this can be a very complex and involved process, particularly when:

• the Will is contested
• family members have been omitted from the Will
• family members receive unequal distributions from the deceased’s estate
• the deceased person is survived by minors
• the deceased owned a number of assets 
• the deceased has holdings, interests, and/or offices in companies and/or trusts
• there are debts owed or owing and the deceased did not leave sufficient money to pay those debts
• there are complicated proceedings on foot involving the deceased.

Administration Duties

There are a number of administrative matters that the executor must deal with in a timely manner, including:

• locating the last original Will
• making funeral arrangements
• notifying beneficiaries of any interest they have in the Will
• updating beneficiaries on the administration of the estate and any distributions
• responding to any requests for information
• preparing and filing final tax returns for the deceased
• notifying government agencies, utility providers, financial institutions, insurance providers, and so on that the Will-maker has died.

Probate and Distribution

One of the first duties of the executor is to obtain a Grant of Probate from the Supreme Court of Victoria. This is usually done by putting together and lodging an application with the Prothonotary Office and is often done by a solicitor retained by the executor. 

Once the executor has the Grant of Probate, they can go about actioning their duties. The Executor can then use the Grant of Probate to identify and call in assets, prepare assets for sale in anticipation of paying creditors of the deceased, and making the final distributions as per the directions set out in the Will.

Financial

As mentioned above, the executor must call in and secure the assets of the estate. To do this, the executor must contact financial institutions, service providers, and government agencies to find out about all assets and debts of the deceased. 

The executor will also need to carry out title searches, company searches, and other relevant public searches to identify any structures, businesses, companies, trusts, and similar that will need to be administered by the executor. 

Can there be more than one Executor of a Will?

There can be more than one executor of a Will. In fact, it is not uncommon for siblings to be named as co-executors of a parent’s Will. Such appointments will involve all the usual considerations when appointing an executor, however, further thought should be given as to how disputes between the co-executors will be resolved.

Can an Executor of a Will also be a Beneficiary?

Being an executor of a Will does not preclude someone from being a beneficiary. Executors are frequently named as beneficiaries of the Will, particularly in situations where the executor is a family member of the deceased. 

This situation may give rise to an actual or perceived conflict of interest, especially where the executor is receiving a fee for the work done, has an interest greater than that of the other beneficiaries, or there is an argument that the deceased did not leave sufficient assets to meet his/her wishes. 

Remember, the primary duty of the executor is to act in the interests of the deceased and fulfil the deceased’s wishes in accordance with their Will. If the executor of the Will is also a beneficiary, the executor’s actions may be called into question and claims may be made that the executor is acting in his or own best interests rather than that of the deceased. 

For more legal advice regarding becoming an executor of a will, book a consultation with Rockwell Family Law

Being an executor of a Will can be time consuming, stressful, and complicated. For tailored advice about becoming or acting as an executor of a Will, book a consultation with the experienced, knowledgeable, and caring lawyers at Rockwell Family Law.

A divorce is a legal action that spouses take to formally terminate their marriage.

We understand that the breakdown of a marriage can be a challenging and emotional experience. That’s why Rockwell Family Law is here to help make the divorce process as simple and straightforward as possible so you can focus less on the complexity and more on your healing.

How to Apply for Divorce. How Long Does it Take?

In Australia, partners must be separated for over a year before they can apply for a divorce. 

Once a divorce is granted by the Court, it will be finalised one month and one day later. The day after finalisation, you’ll be able to access the divorce order through the Commonwealth Courts Portal. 

Filing the Application for Divorce Form

A solicitor can prepare and lodge your divorce application for you, or you can do it yourself by registering through the Commonwealth Courts Portal. Here, you’ll be able to create your court file, upload your documents, and ultimately receive the final court order. 

A divorce application can be filed as either a ‘joint application’ with your spouse, or as a ‘sole application’ where just one person applies. 

Swearing the Application to a Lawyer

Once your Application for Divorce form is complete, the next step is to swear (or affirm) the form in the presence of a lawyer or other authorised person. Who classifies as an authorised person can vary, so be sure to check the relevant legislation in your state or territory before choosing a person to witness your signature. 

Serving the Application for Divorce

When filing for divorce as a sole applicant, the Application for Divorce needs to be served on the other party. If your spouse is in Australia, this must occur 28 days before the court hearing, or 42 days before the hearing if they’re overseas. 

You can serve divorce documents by post or by hand. When serving by hand, you cannot serve the documents yourself, so you’ll need to arrange for a person over the age of 18 to do it for you. The server can be a family member, a friend, or a professional process server. 

If, for some reason, you cannot serve the documents (such as when your spouse’s whereabouts are unknown), you’ll need to apply to the Court for a conditions of service order. 

Eligibility: Can I Get Divorced?

To be eligible for divorce in Australia, there are several requirements you must satisfy. 

Australian Citizenship or Residency

You must be within the jurisdiction of the Federal Circuit and Family Court of Australia. There are several ways of meeting this requirement:

• You were born in Australia or hold a grant of Australian citizenship
• You live in Australia and regard Australia as your permanent home
• You ordinarily live in Australia and have done so for at least 12 months prior to the divorce application

If you’re currently living overseas, you can still file for divorce as long as you were born in Australia or are a citizen by descent, though you’ll need to have a current Australian address.

No Possibility of Reconciliation

At least one spouse must believe that there’s no reasonable possibility of reconciliation. 

Proof of an attempt to reconcile is not required; however, if you’ve been married for less than two years, you’ll need to attend counselling with a family counsellor. You’ll then obtain a certificate as proof of your attendance. 

In special circumstances, such as when there are allegations of domestic violence, the Court may grant you permission to apply without this certificate. 

Proof of Separation for a Year

Prior to a divorce, you and your spouse must have been separated for at least 12 months and 1 day. 

Separation typically means living apart, though it’s also possible to be ‘separated under one roof’. This is when spouses separate but continue to share the same home for days, weeks, months, or even years. 

The Court may consider the following as proof of separation under one roof in divorce cases: 

• Separated finances
• Changes to sleeping arrangements
• Reduced attendance of shared activities
• If and when friends and family were informed of the separation

Provide a Marriage Certificate

To dissolve a marriage, you must first be able to supply a marriage certificate. 

During your application, be sure that the names you’re providing are identical to the names on your marriage certificate.

If you don’t have a copy of your certificate, you can apply for a replacement copy through Births, Deaths and Marriages in the state or territory where you were married. If you were married overseas, you’ll need to obtain a copy of the certificate from the relevant authority in that country. For marriage certificates that aren’t written in English, you’ll need to attach both the original and a translated version to your application. 

How Are Assets Divided in a Divorce?

How assets are divided in a divorce isn’t something that will be determined in the initial court hearing.

If both parties can agree on how property should be divided, you can apply for consent orders in the Family Court, or enter into a binding financial agreement. If you can’t reach an agreement, you may need to take these matters to the Family Court by applying for financial orders.

Property Settlement

The term ‘property settlement’ refers to the division of property between spouses upon separation. Discussions surrounding the division of assets can begin as soon as a couple separates. 

Keep in mind that assets won’t automatically be split 50/50. Many factors will need to be considered to ensure that property is divided appropriately. 

The property settlement process can typically be broken down into four key steps: 

Step 1: Value assets and debts

Each party must provide full and frank disclosure to give a complete overview of all assets and debts, often through the sharing of documents.

Step 2: Assess contributions to the relationship

This takes into account financial contributions such as income, non-financial contributions such as home renovations, and contributions as a homemaker or parent. 

Step 3: Consider financial commitments and income

Adjustments will need to be made based on earning capacity and financial commitments such as child custody.

Step 4: Is the overall outcome ‘just and equitable’?

Finally, the court will look at the overall picture to ensure that the division of property is appropriate, or ‘just and equitable’. 

Mutual Debt

So how is mutual debt divided during a divorce? Generally speaking, a Court takes the position that any debt accrued during the relationship was of mutual benefit and had the consent of both parties. However, in instances where the debt was incurred wastefully or for the benefit of just one party, it may be discounted from the total asset pool and therefore won’t be considered mutual debt. 

This may be the case for a gambling debt or debt accrued in the pursuit of an extra-marital affair. Such debts will instead be handed to the individual who incurred them. 

Child Custody

If both parties agree on child custody after a divorce, there’s no need to take the matter to Court. If it does go to Court, however, the statutory presumption is that ex-spouses will share joint parental responsibility. This presumption can be rebutted if it conflicts with the best interests of the child, such as in cases of family violence or child abuse. 

Two primary factors will help the Court decide what’s in the child’s best interest:

• The benefit of having a meaningful relationship with both parents
• The need to protect the child from physical or psychological harm as a result of abuse, neglect, or family violence

Additional considerations may include: 

• The views of the child
• The nature of the relationship with the parent
• Whether the parents are committed to encouraging an ongoing relationship between the child and the other parent
• Each parent’s ability to provide for the child

How to Divorce When the Other Person Refuses

In Australia, the Court can grant a divorce order even when one spouse opposes it or refuses to sign the documents. 

As long as the Court is satisfied that the marriage has ‘irretrievably broken down’, and that the parties have been separated for at least 12 months, you can file a divorce application as a sole applicant. 

If you make a sole application, you must be able to prove that the application has been served to the other party, so it’s best to do this by hand.

For More Legal Advice Regarding Divorce, Book a Consultation with Rockwell Family Law

We understand that a divorce can be distressing for all parties involved. That’s why we strive to make the process as easy and stress-free as possible. For expert advice and guidance during this trying time, organise a consultation with one of our experienced divorce lawyers. We’ll be with you every step of the way.