Is Being An Executor Difficult? (Qld)
Lawyers are often asked the question: is being an executor difficult? The executor of a deceased estate is chosen specifically to administer a testator’s will according to their wishes. The role of executor is not an honorary position, as there are actually many responsibilities that come with the role. Undertaking this responsibility can be quite difficult given the potential challenges and number of duties involved in wrapping up a deceased estate in Queensland.
Selecting An Executor Can Be Difficult
When a testator writes a will to dispose of their property, he or she should also select an executor for their deceased estate. Many people choose their spouse, or other next of kin, to administer the terms of the will, but sometimes this is not the right solution. A testator should only choose someone who can ably handle administrative tasks while liaising with emotional family members and beneficiaries.
A testator should make a choice with thought to the level of financial, legal and personal responsibility involved in an executorship. A family member may be ill-equipped to cope with the role, particularly during a time of grieving. In that case, a testator may be better advised to choose a professional executor (such as a solicitor) to handle the estate with competence and impartiality.
The Duties Of An Executor Can Be Difficult
Of course, an executor may have limited responsibilities if the estate is small and there are no legal complications. It is more likely that acting as executor will be difficult when administering a complex will pertaining to a large estate. Regardless of the total size of the estate, the general duties of an executor in Queensland may include:
- Applying to the Supreme Court of Queensland for a Grant of Probate;
- Locating and safeguarding the deceased’s assets;
- Paying specific debts according to the testator’s instructions or statutory regulations;
- Acting on behalf of the estate during legal proceedings;
- Satisfying the deceased’s taxation obligations; and
- Distributing bequests and assets as appropriate.
An executor may potentially have to represent the deceased estate in a legal proceeding. The executor acts as the defendant/respondent in any case brought against the estate by a creditor, claimant or someone challenging the validity of the will itself. This is a fairly rare occurrence, but an executor does need to be aware that it can be a difficult undertaking without legal assistance.
Fiduciary Duty Of An Executor
An executor in Queensland has what is called a fiduciary duty to the estate and the beneficiaries. This means that the executor is specially tasked with acting honestly in the best interests of the beneficiaries of the will. In particular, the executor needs to maintain accurate and comprehensive financial records in order to avoid conflict or misunderstanding. If an executor cannot live up to the fiduciary responsibility, and the beneficiaries suffer financial loss as a result, the executor may even be personally liable.
Being An Executor Can Be Time-Consuming
Being an executor can also be difficult because it can take considerable time to finalise an estate. While an estate can be wrapped up in six months, it may take several years to discharge the last of the estate responsibilities. It can be difficult for a family member to find time to stay on top of their duties in addition to their own work and family commitments.
Renunciation And Removal Of An Executor
Being an executor can be far more difficult than expected. Unfortunately, it is a lot harder to give up the role if a person has already begun to take legal responsibility for the estate. Someone who is experiencing difficulty as an executor can apply to the court to renounce probate and have an administrator be appointed in their place. An executor can also ask the Public Trustee of Queensland to take over the administration for a fee. By the same token, if an executor is negligent in their duties, the court can order their removal.
Sometimes, being an executor can be as time-consuming and complicated as a full-time job. A non-professional executor can actually apply to be compensated for their work through an executor’s commission. In Queensland, the amount of commission depends on the value of the estate, the complexity of the executor’s duties, how long it took and whether the executor undertook all the duties themselves. Fundamentally, the level of difficulty involved in administering an estate decides the degree of remuneration that the executor will receive. The maximum commission that an executor can expect is 6% of derived income and 5% of the capital in the estate, though the court reserves this maximum commission for extremely difficult executorships.
Being an executor in Queensland can be difficult. It is essential that you have a clear picture of what you are facing before you agree to undertake the role. Please get in touch with the specialists at Armstrong Legal on 1300 038 223 for any advice. The team can offer assistance if you find yourself experiencing difficulties with administrative tasks or a legal dispute of the will.