The Role Of The Executor
The role of an executor is to carry out the deceased’s testamentary intentions as recorded in the will. In other words, the executor must do for the deceased what the deceased can no longer do for themselves.
Once a person accepts the role of executor, they owe a strict fiduciary duty to the creditors and beneficiaries of the estate to administer the estate according to the principles of law and equity.
The duties of an executor are well established. Fundamentally, the role of an executor is to:
- collect, protect and administer the estate assets;
- pay the estate creditors; and
- distribute the balance of the estate to the beneficiaries in the will.
An executor is entitled to be reimbursed their reasonable expenses, but in most cases should not expect to receive payment or commission for their work performed in the estate administration.
A person appointed to the role of an executor in the will of a deceased person should think carefully about whether they wish to accept that role. It is not necessary for any person named as an executor to take on the role and accept the strict duties and responsibilities that flow from that position.
Where a person does not wish to accept their appointment as an executor, the position can be renounced prior to the commencement of the estate administration.
Once a person has accepted the role of executor and probate has been granted by the court, the executor can no longer renounce their position without showing good cause, particularly if the estate administration has commenced.
In broader terms, once a person accepts the role of an executor, their duties to the estate of the deceased person can be summarised as follows:-
Executor of will to arrange for the proper disposal of the deceased’s body
Taking into account the deceased’s wishes, an executor has a right to decide whether a deceased person is to be buried or cremated and how they are to be commemorated.
It is the role of an executor to arrange the deceased’s funeral, liaise with the deceased’s family and friends and ensure the practicalities of any service are met.
The executor will likely incur expenses in relation to the deceased’s funeral and commemorations, which are often paid by the executor personally at first instance, then later reimbursed to the executor from the estate during the estate administration.
Executor of will must keep accounts and inventory
An executor has a strict duty to keep proper accounts and to prepare an inventory of the estate assets and liabilities. This is considered an essential task and a proper inventory should be prepared at the beginning of the estate administration.
Executor of will has duty to collect assets
Once a proper inventory has been prepared, an executor has a duty to call the estate assets into their possession, to be held on trust for the estate.
Executor of will must protect estate assets
An executor has a duty to protect the estate assets from waste. For instance, real property may be let to prospective tenants, legal proceedings commenced against debtors to the estate and investments managed to realise as much profit as is reasonable during the period of estate administration.
Executor of will and payment of debts
It is the role of the executor to ensure that the deceased’s debts are properly paid. This includes negotiating payment of any estate debts and may include administering any mortgage, lien, charge or other security on the estate assets.
Executor of will has duty to distribute
The role of the executor is then to distribute the estate assets to the persons beneficially entitled under the will. Prior to attending to distribution, an executor should publish a notice of intended distribution and allow a period of at least six months to elapse from the date of death of the deceased for any claims to be made on the estate.
The term ‘executor’s year’ is often used in estate administration as it generally expected in most circumstances that an executor should be able to finalise the estate administration within 12 months of the date of death.
A final distribution statement should be prepared to ensure that an executor can account for all the estate assets, show all estate transactions and ensure that the requirement to keep proper accounts is met.
Family provision and estate litigation
Where a claim is made on an estate, such as an eligible person seeking provision from the estate of the deceased person, it is the role of the executor to represent the estate and in doing so, protect and safeguard the interests of the beneficiaries.
If you have been appointed an executor in the will of a deceased person, or have any other questions, contact the friendly team at Armstrong Legal on 1300 038 223 or send us an email.
WHERE TO NEXT?
Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.