This article was written by Serenay Kalkan - Associate – Melbourne

Serenay joined the Armstrong Legal team in March 2014 and has gained extensive experience in Wills & Estates Law across several jurisdictions such as Victoria, South Australia and Western Australia, in addition to being involved in complex will dispute matters. She has graduated with a Bachelor of Laws from Monash University in November 2016 and was admitted to practice in...

What Are The Rights And Duties Of An Executor/Administrator?


The executor or administrator of an estate is responsible for collecting the deceased’s assets, paying any liabilities that the deceased may have had and administering the estate in accordance with the deceased’s will or in accordance with the rules of intestacy where the deceased did not leave a will. An executor or administrator may also be referred to as the “legal personal representative” of the estate.

Duties

The duties of an executor or administrator of an estate include:

  • taking custody and see to the disposal of the deceased’s body;
  • collecting the assets of the estate;
  • selling the assets of the estate (unless the assets are specifically given to a beneficiary in the deceased’s will);
  • paying the testamentary expenses and liabilities of the estate;
  • administering the estate in accordance with the will or the rules of intestacy;
  • keeping proper accounts; and
  • carrying on or defending against causes of action in respect of the estate (please note that the survival of contractual rights allows executors to enforce or be sued on contracts entered into by the deceased during their lifetime).

Executors and administrators also have a fiduciary duty to the beneficiaries of the estate and must discharge their duties in the best interests of the beneficiaries. Where an executor or administrator breaches their fiduciary duty, such as delaying administration of the estate, wasting estate assets or misappropriating estate assets, there are a number of remedies which can be sought by the beneficiaries. Beneficiaries may seek for the grant of Probate or Letters of Administration to be revoked and for the executor or administrator to account to the estate for any loss that they have caused through their action or inaction.

Rights of An Executor or Administrator – Commission

The role of an executor or administrator is largely gratuitous, meaning that they are expected to carry out their duties without seeking remuneration from the estate. In many cases an executor or administrator is also a beneficiary of the estate and therefore they will already receive a benefit. However, in circumstances where the work conducted throughout the course of administration warrants a benefit or a further benefit, an executor or administrator is entitled to seek commission for their “pains and trouble”.

Each state has their own legislative provisions which sets out the steps an executor or administrator must take to seek commission out of an estate. In each state, the executor or administrator is required to file and verify the estate accounts as part of their application for commission out of the estate.

The application for commission will be determined by a registrar of the relevant Supreme Court who will consider:

  • the amount of capital realised;
  • the amount of income collected;
  • the value of any assets transferred to beneficiaries; and
  • where a business was carried on — the gross receipts and net profit earned or loss incurred, during the period of the accounts.

The amount of commission will be determined as a percentage of the above amounts. In considering the application, the registrar will have regard to the work which the executor or administrator actually performed themselves as opposed to work which they instructed agents, such as solicitors or accountants, to perform.

In circumstances where the executor or beneficiaries do not agree with the Registrar’s determination, it may be appealed with the appeal heard by a judge of the relevant Supreme Court.

If you wish to discuss the rights and duties of an executor in greater detail please contact our experienced legal team 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.

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