Executor Of An Estate (ACT)
The role of an executor of an estate in the Australian Capital Territory is both important and time-consuming. An executor has a fiduciary duty to the deceased that is legally enforceable and so must put the welfare of the estate above their own interests. A testator should think carefully before selecting someone as executor, and that person should not accept the role until they have considered the scope of the task that is involved in administering a deceased estate. In the ACT an executor is authorised under the Administration and Probate Act 1929 to pay the debts of the deceased and protect the remaining assets of an estate until they can be distributed to the beneficiaries. The article below outlines the type of person who can undertake the role of the executor of an estate in the ACT and the nature of their duties.
Who Can Be Appointed As Executor Of Estate In The ACT?
Any capable adult of sound mind can be appointed executor of an estate in the ACT. It is typical for a testator to select a close family member, such as a spouse or adult child as the executor, as they are best positioned to understand the deceased’s wishes and already have an interest in protecting the estate. If the testator has no suitable family or friends or prefers to have an independent and impartial person administering the estate, they can retain the services of a professional, such as a solicitor or Public Trustee and Guardian.
Is Joint Executorship A Good Idea?
It is a sensible precaution for a testator to name more than one person as executor of their estate in their will. This allows for one or more named executors not being available after the testator dies, whether because they themselves have passed away or because they are unwilling to assume responsibility. The testator can name as many executors as they desire in the will, but the Registrar of the Supreme Court of the ACT will only appoint a limited number of executors to administrate the estate. In the event that there are more willing executors than the Registrar will permit, they will be appointed in the order of preference as they are listed in the will.
Multiple executors work in joint executorship to administrate the deceased estate, sharing the burden of responsibility and providing supervision of each other’s conduct. Some testators appoint a solicitor to manage the administrative side of the executorship, and a major beneficiary to safeguard the deceased’s personal effects during probate and act as the point of contact for other family members. Individuals working in joint executorship must agree on the approach to major aspects of the administration, such as matters relating to real estate and the legal defence of the estate from challenge and contest. An executor of an estate can handle smaller administrative matters by themselves.
In the event that the executors cannot agree on a course of action for the estate, they will need to consult separate solicitors for advice. It is quite common for disputes to arise between executors and this situation can prove costly to the estate. The testator should consider this reality when selecting an executor of an estate and take care to choose people who will be able to act together without acrimony.
What Are The Duties Of An Executor Of Estate In ACT?
The first task of the executor is to make any necessary funeral arrangements and apply for a death certificate from the ACT government.
The next step is to file for a Grant of Probate from the Supreme Court of the ACT if required. The application requires the executor of an estate to have compiled an inventory of the assets and liabilities of the estate for submission to the Probate Court. Once the Grant of Probate is issued, the executor can start discharging the debts of the estate. An accountant can help advise the executor of the liabilities that burden the estate, including taxation liabilities, and assist with the lodgment of the deceased’s final tax return. This tax return will include one last payment for any HECS-HELP study assistance debt, but the remaining debt dies with the testator. When the debts of the estate are satisfied, the remaining assets are bequeathed to beneficiaries in accordance with the will. If there is insufficient capital in the estate to discharge the debts, then the estate is insolvent and the executor must consult a solicitor immediately to avoid personal liability.
Removal And Renouncement
An executor can refuse to accept the role of executor of an estate by renouncing the role formally. It is essential that this renouncement occur immediately otherwise it will be more difficult to transfer the responsibility. If the executor was named in a list of other executors, then the other named persons can continue with the executorship. If the renouncer was the only named person, then an eligible party will need to apply to the Supreme Court to act as administrator.
An executor of an estate can also be removed from their position if the court finds that they have breached their duty of care. An application to remove the personal representative must be made by an eligible party. The court will review the relevant paperwork and hear the nature of the complaint, and if necessary, replace the executor with a suitable administrator.
The contested wills team at Armstrong Legal have extensive experience with the responsibilities of executorship and can act for you as executor, aid an executor in their duties, or help select an appropriate executor of an estate. For any advice related to this area of law, or any other legal matter, please contact our office to make an appointment, or call our specialist team on 1300 038 223.