Being appointed as an executor is an important role that comes with responsibilities.

You may be solely appointed, or you may be appointed jointly with other executor(s).

A person who is named as an executor in a will is not obligated to accept their appointment. However, once that person has begun acting as an executor, it becomes much more difficult to renounce their position.

Executors are primarily responsible for carrying out the terms of the deceased’s will and administering the deceased’s estate in accordance with the law and the deceased’s wishes.

Executors have a range of duties attached to this responsibility. For example, executors are responsible for the following:

  • Funeral arrangements
  • Locating the original Will
  • Notifying relevant services and organisations of the deceased’s death
  • Investigating and establishing the assets and liabilities held by the deceased at the date of their death
  • Applying to the Supreme Court of New South Wales for a Grant of Probate
  • Payment of estate debts and expenses
  • Protecting the estate from loss and preserve the assets of the estate
  • Defending any legal proceedings against the estate
  • Maintaining records of estate transactions
  • Managing tax affairs
  • Distributing estate assets
  • Acting impartially and in the best interests of the beneficiaries

Generally, the first requirement will be for the executor to arrange a funeral for the deceased noting this needs to occur as soon as possible following the deceased’s death. If the deceased left instructions in his or her Will, the executor should carefully follow those instructions. An executor should be aware that in New South Wales, it is an offence to cremate a deceased person who has made a written direction to not be cremated.  

The executor will need to locate the original Will and advise the beneficiaries that they are listed as a beneficiary. The process can become complicated if for example the original Will is missing or if a beneficiary cannot be found. The executor will also need to identify the estate assets and liabilities. 

The executor will need to obtain a Grant of Probate from the Supreme Court of New South Wales in order to deal with the estate assets and liabilities, as well as distribute the estate.

Probate is a document that is issued by the Supreme Court of New South Wales that proves that the deceased’s last will is the last valid will and authorises the executor of that will to administer the estate in accordance with the will.

Once Probate is granted, the executor is then in a position to deal with estate assets as well as liabilities and debts.

As noted above, executors must act in the best interest of the estate and the beneficiaries.

An executor should ensure the administration of the estate is completed in a reasonable time. It is important to be aware that unjustified delays could lead to an executor being removed or even personally liable if it can be shown that the executor caused the delay, and the beneficiaries suffered a financial loss as a result of the executor’s actions or lack of actions.

In the event of any claims made against an estate, the executor(s) has a duty to defend any legal proceeding against the estate. This may include upholding the terms of the deceased’s will and defending the will should it be contested or challenged. It is important to note that executors have a duty to act reasonably and compromise on reasonable claims.

A will may be contested by way of a family provision claim, whereby an eligible person can seek an order for provision from the deceased’s estate. There are also other types of claims that may be made against an estate including but not limited to a Will challenge, promissory estoppel and/or constructive trust claim. The executor is responsible for defending the estate against a claim made and you can find further detail in this regard by visiting our article on What you need to know about defending a Will in NSW”.

It is important to be aware that an executor should not distribute an estate before six months from the deceased’s date of death. If an executor distributes an estate earlier than six months from the date of death, the executor loses protections provided under NSW laws. Similarly, an executor should not distribute an estate when on notice of a family provision claim. If an executor considers there is a risk that a claim may be made, they should seek legal advice as soon as possible.

The role of executor can be quite complex and there can be personal and financial consequences to an executor if the estate is mismanaged.

August & Claire Lawyers can assist you if you are appointed as an executor under a Will and require help with the administration of the estate. Please call us on (02) 4944 2008 or email us at admin@augustandclaire.com.au if you would like to arrange a free consultation.