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.
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.
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.