Executor of a Will (ACT)
In the Australian Capital Territory, an executor of a will is empowered under the Administration and Probate Act 1929 to manage the estate of a deceased. A testator can employ a professional to act as executor, or appoint a trusted friend or family member to administer the estate. The executor is tasked with safeguarding the assets of the deceased estate during probate until they can be passed over to the rightful beneficiaries. This article explains the role of the executor of a will in the ACT.
Preliminary Duties of an Executor of a Will
The executor must first obtain a copy of the deceased’s death certificate and, if the family has not already made funeral arrangements, make the appropriate preparations. Executors should then apply for the relevant Grant of Probate from the Supreme Court of the ACT. The duties of the executor after these preliminary tasks depend on the wishes of the testator and the particular circumstances of the estate.
There is considerable responsibility in the role of executor and it should not be undertaken lightly. Regardless of whether the chosen person is a professional or layperson, they have a fiduciary duty to the deceased. As such, they have a legally enforceable obligation to place the interests of the deceased above their own interests.
The executor must focus on accounting for the assets and liabilities of the estate and safeguarding the valuables of the deceased. This might involve organising for necessary maintenance on a property, purchasing insurance for real estate or keeping up with the payment of premiums, or even taking the reins of a business enterprise to keep it in operation. They may also need to protect the estate against any legal challenge or contest.
Once probate is granted, the executor of a will can discharge the liabilities of the estate. They should contact an accountant to ensure that a final tax return is lodged for the deceased and that any tax liabilities are paid. If the testator had an outstanding HECS-HELP debt when they died then a final minimal payment needs to be made (the remaining debt is forgiven when a person passes away). Once the debts of the deceased are paid, the executor can distribute the residual estate according to the wishes of the testator.
Renouncing an Appointment as Executor of a Will
Just because a testator nominates someone as executor, does not mean that the person is required to accept. It may be difficult to refuse the last wishes of the deceased, but not everyone can manage such a time-consuming and potentially onerous responsibility. It is in the interests of all the parties that the executor is someone who has the time and skill-set to manage the task.
In the event that the named person does not want to accept the role, they can engage the Public Trustee and Guardian to act on their behalf, or legally renounce the role. It is important that the executor withdraws without commencing any of the duties of executorship, as that is a tacit acceptance of the appointment, and abdicating responsibility is no longer a simple matter. Someone who is unsure about their capacity to act as an executor of a will should urgently consult a solicitor for advice on their particular circumstances.
Multiple Executors of a Will
It is a wise precaution for a testator to appoint more than one executor in their will, in case one of the nominees is unavailable when they are needed. There is no limit to the number of executors that a testator can name in a will, but the Registrar of the Supreme Court of the ACT will grant probate to a finite number of executors at any one time. If the testator has named more executors than the Registrar permits, then they are appointed in the order that they appear in the will.
Multiple executors can work together to manage the duties of the deceased estate, dividing the responsibility and allowing for oversight of each other’s actions. It might be a practical prearrangement for the testator to appoint a professional, such as a solicitor, to finish the administrative duties of the estate, with a family member taking on responsibility for the personal property of the deceased and keeping the family informed during probate.
Where multiple executors are appointed, they must act jointly for significant financial acts such as leasing, mortgaging or selling real estate, and for major administrative duties, such as defending the estate from challenge or contest. Each of the executors can complete the smaller tasks of estate administration by themselves.
Expenses and Remuneration
An executor may apply to be reimbursed for any costs they incurred in the course of administering the estate. A professional is paid for undertaking the responsibility, but a personal friend or family member typically accepts the position without expectation of reward.
Nevertheless, a testator does sometimes make a provision in their will to recognise the executor for their hard work, and occasionally a beneficiary of the estate wants to thank the executor with a financial reward.
There is also provision in the Administration and Probate Act 1929 for an executor to receive a commission for their work, in a “just” amount.
Obligations of an Executor of a Will in the ACT
An executor must abide by the final wishes of the testator as closely as possible, as long as they are consistent with state law. They need to act expeditiously, in the best interests of the estate, communicate regularly with interested parties, mediate disputes between beneficiaries, and defend the estate from all damage and challenge.
In the event that the executor breaches these statutory duties of care, the courts can hold them responsible for any loss. The courts will review the original Grant of Probate and hear the details of the complaint, and will remove an executor if there is sufficient evidence of mismanagement of the estate. If a suitable person makes an application, the court can appoint them as administrator instead of the removed executor.
If you have been appointed as an executor of a will in the ACT, we can advise you on the responsibilities of the role. Please call our experienced team at Armstrong Legal on 1300 038 223 or send an email to our office to make an appointment.