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Does An Executor Need A Lawyer?

After a testator dies, an executor must deal with a range of legal and administrative responsibilities. For the most part, a competent adult with strong administrative skills and research skills can tackle these duties by themselves without assistance. However, there are a few occasions when an executor will need a lawyer. Additionally, there are many more situations when a lawyer can make things easier and more convenient for the executor. This article explains the circumstances when it is necessary and desirable to obtain legal advice during the administration of a deceased estate.

Executor Competence

Theoretically, an executor can be anyone who is over the age of 18 and mentally competent. In practice, a testator should choose an executor who is trustworthy, mature and capable of managing a range of administrative tasks. Of course, the size and complexity of the estate itself will determine the complexity of these tasks.

Small estates: Does An Executor Need A Lawyer?

An executor handling a straightforward, small estate may not need to engage a lawyer. An executor of a small estate may not even have to apply for probate if the testator made careful arrangements. For instance, a testator can limit the number of assets held in the deceased estate by holding property and bank accounts with another person in joint ownership. Similarly, a testator can make binding death benefit nominations (BDBN) for any superannuation accounts and insurance policies. BDBNs ensure that funds are transferred directly to the designated beneficiary. In that scenario, the estate may consist only of a handful of household items.

There are some tasks that an executor is allowed to do as a layperson, but they nevertheless may wish to delegate to a solicitor. For instance, an executor can apply to a Supreme Court for a Grant of Probate of the will. There is no legal reason why an executor cannot fill out this paperwork themselves, but a solicitor will bring efficiency and expertise to the process.

An executor should engage a solicitor to address any issues that may impede the grant of probate. For instance, if the executor cannot locate the original will to submit with the application, they must submit a copy of the will and explain the discrepancy. A solicitor can prepare the application to highlight that the executor has made every effort to locate the original will. Similarly, suppose there are issues with the original will (such as holes, annotations, or stains). In that case, a solicitor can draft the application and affidavit to demonstrate the will’s validity. As an officer of the court, the solicitor has a better chance of obtaining probate for an irregular will than a layperson executor.

Many executors find that they could use legal advice from an experienced lawyer at some point in winding up an estate. The executor needs legal advice if the estate is large, with a high value, or has one of these characteristics:

  • The estate contains a complicated asset, such as a business;
  • The beneficiaries are fighting amongst themselves or threatening to contest the will;
  • There are not enough unallocated funds in the estate to pay outstanding liability, in which case the executor needs legal advice on what assets should be sold; and
  • The estate has a tax liability, in which case the executor should get advice from an accountant and possibly also a lawyer.

These scenarios often require a lawyer to represent the deceased estate during a court proceeding. An executor most often needs a lawyer to represent a deceased estate during a challenge to the validity of a will or to defend the estate against a Family Provision Claim.

An Executor Who Is A Lawyer

Some testators actually choose to appoint their lawyer as executor. Appointing a professional executor gives a testator the peace of mind of knowing that an independent party is in charge of the administration of their deceased estate. The executor will be an impartial party to proceedings, mediating disputes among beneficiaries without bias. Appointing a lawyer also means that the executor is on hand to handle legal challenges or contests filed against the estate and represent the estate in court proceedings.

Does An Executor Need A Personal Lawyer?

An executor would only need a personal lawyer to represent their own legal interests. For instance, an executor may need legal advice if they are held personally liable for any financial loss incurred by misconduct or mismanagement of the deceased estate. In that case, the team at Armstrong Legal can provide advice on executor removal requests and help prevent more serious legal consequences.

The contested wills team at Armstrong Legal is well equipped to handle any of your probate, succession and personal liability legal questions. Please get in touch with the team on 1300 038 223 for any advice or representation in a court proceeding.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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