Executor of a Will (Qld)
The executor of a will is the person given the responsibility of administering a deceased person’s estate according to their final wishes. This is a serious undertaking and a position of considerable trust, and the appointed person is held to a high standard of conduct. In Queensland, the main focus of their duties is the safeguarding of assets during the probate process to prevent loss and to ensure the correct distribution to the beneficiaries nominated in the will. This article outlines the role of the executor of a will in Queensland, with particular focus on the conduct that is expected of the executor.
Who can act as an Executor?
An executor of a will must be over the age of eighteen. In Queensland, a nominee who is under the age of eighteen will usually be replaced by the appointment of their parent or guardian, who will act until the rightful executor reaches eighteen.
An executor must be capable of discharging the duties involved in the administration of a deceased estate. There is no set test for determining whether someone has the necessary cognitive capacity, but as there is a similar level of required competence, a good guide is whether a person is capable of running a small business. Of course, some estates are very straightforward and require much less time and effort.
If a person has concerns about their capacity to act, they can renounce the appointment. Instead of applying for a Grant of Probate, the nominee can appoint the State Trustee to act on their behalf, or renounce their appointment entirely. However, if a person has already commenced acting in the role, it is much harder to abdicate the responsibility. If you are considering renouncing the role of executor of a will, it is best to take no action until you are ready to commit either way.
Duties of an Executor in Queensland
One of the first duties is to apply to the Supreme Court of Queensland for a Grant of Probate. The subsequent duties depend on the wishes of the deceased as they are outlined in the will. Many executors will apply for a death certificate and help to make funeral arrangements. The executor must take responsibility for locating the assets of the estate, having their value assessed and then safeguarding them during probate.
After probate is granted, the executor will pay the debts of the estate, including any tax liabilities. The wishes set out in the will may need to be overruled by the executor at this point, as the payment of debts is prioritised over the making of gifts: for instance, an executor may need to sell a property meant to be gifted to a beneficiary in order to satisfy debts of the estate. Only when all debts have been paid can the remaining assets of the estate be distributed to the beneficiaries in accordance with the will. If the assets of the estate are insufficient to discharge the debts, then the estate can be declared bankrupt, in which case the executor must comply with relevant bankruptcy legislation.
An executor is also required to defend the estate in court, if necessary, against a contest or challenge. A contest occurs when one or more individuals contend that they have not received sufficient provision in the will for their maintenance and support. Contests are relatively common in Queensland, and an executor should be prepared to defend the wishes of the deceased in court. The court may overrule the wishes of the deceased and order a new distribution amongst the beneficiaries. The executor is then responsible for administering the estate in accordance with the court ruling.
If the testator appoints several executors in their will, and they are all prepared to take up the role, they can act together to complete the duties of the executor. In fact, this practice is recommended, as a pair of executors can monitor each other and share the burden of responsibility. For example, the testator might appoint a solicitor to complete the administrative duties of the estate, and a trusted family friend to manage the personal belongings of the deceased during probate.
In the event that several persons accept the role, they must act with joint authority to manage the larger matters of the estate, such as defending the estate in court and selling real estate. Individual executors can handle smaller issues alone as a representative of the joint authority of the executorship.
Remuneration and Expenses
A professional will receive a fee for acting as executor, but a family member or friend usually acts as an unpaid appointee. Sometimes a testator makes a specific gift in the will in recognition of the contribution of the executor, and sometimes the benefactors themselves wish to acknowledge the executor with a monetary reward. It is common for a family member who is a major beneficiary of the estate to also be appointed executor, which tends to eliminate any question as to reward as the executor is acting in his or her own interests.
An executor, whether professional or not, is entitled to claim all the necessary costs they incur while performing their duties against the estate. Alternatively, if the duties of their role are particularly onerous and time-consuming, an executor may apply to the court for a “commission” amounting to not more than 6% of income derived and 5% of capital realised, depending on the complexity of the estate.
Obligations of an Executor of Will in Queensland
The executor must be as faithful as they can to the wishes of the deceased as they are written in the will. However, this is only possible if the will is in keeping with the laws that govern deceased estates in Queensland, primarily the Succession Act 1981.
It is essential that the executor acts with honesty and due care while administering the wishes of the deceased. He or she must consciously refrain from acting in a way that maximises their own interests and instead, act only to protect the interests of the estate.
Breaches of Duty
If any beneficiary of a will feels that the executor has breached their duty of care, they can lodge a complaint with the court. The executor can be held liable if their negligence or mistake causes loss to a claimant or beneficiary. The court can also hold an executor responsible if the administration of the estate is unreasonably delayed. If the court finds that there was a dereliction of duty, it will replace the executor with a suitable administrator.