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Executor of an Estate (Qld)

In Queensland, an executor of an estate is appointed to administer the will of a testator after their death. The executor must safeguard the assets of the estate during the probate process until these assets are delivered to the rightful beneficiaries. A testator often selects an executor from amongst their trusted friends and family, but they can also employ a professional to administer the estate. This article examines the role of the executor in Queensland, with a particular focus on the potential for misconduct in the administration of the estate.

The executor of an estate in Queensland is required to administer the estate according to the Succession Act 1981 (Qld). Frequently the first actions of an executor will be to obtain a copy of the death certificate and make funeral arrangements, although if the executor is a professional the funeral may instead be planned by a friend or family member of the deceased. Executors will then apply for a Grant of Probate from the Supreme Court of Queensland. The subsequent duties of the executor depend on the particular circumstances and the final wishes of the deceased.

Duties of an executor

Every executor, whether they are a professional or a personal friend of the deceased, has a ‘fiduciary’ duty to the deceased: that is, they have a duty, enforceable by law, to put the interests of the deceased above their own interests. Executorship is a position of considerable trust and the responsibility should be taken seriously by anyone acting in the role.

An executor’s role focuses on safeguarding and accounting for the assets of the estate. They must locate, value, and protect all of the assets of the deceased. Protecting the assets might involve arranging for insurance or continuing to pay premiums, organising for necessary upkeep, or even running a business if this is required to preserve the value of the asset.

Once probate has been granted, the executor will discharge the debts of the estate. An accountant can advise on any tax liabilities that impact the estate, including the minimum final repayment of any HECS – HELP debt (the residual debt is forgiven). Once the debts and claims against the estate are settled, the executor will distribute the remaining assets in line with the wishes of the deceased. At any time in this process, it is also the duty of the executor to defend the estate against any legal challenge or contest.

Renouncing An Appointment As Executor Of Estate

When someone is nominated to act as executor of an estate, they are not compelled to accept the position.  People often express feelings of guilt about not undertaking the duties of an executor, as this was amongst the last wishes of the deceased, but it should be remembered that acting as an executor of an estate is a potentially time-consuming and onerous responsibility. It is in the interests of the estate that anyone with concerns about acting as an executor should consider seriously whether they have the skills and time to devote to the task.

A nominee who does not wish to act can appoint the State Trustee to act in their stead, or sign a legal renunciation. However, as soon as a person undertakes any aspect of the role of executor, they have tacitly accepted the appointment, and it is much harder to abdicate responsibility. Therefore, if someone is concerned about their capacity to act as an executor of an estate, they should delay acting until they are confident in their decision.

Multiple Executors Of Estates

It is sensible for any testator to appoint multiple executors in their will, in case one nominee is unable or unwilling to act. The testator can nominate any number of executors, but the Supreme Court of Queensland will only grant probate to a maximum of four people at one time. In case the testator nominates more than four people they will be appointed in the order they are listed in the will.

Multiple executors can work in concert in accordance with section 49 of the Succession Act 1981. A combined effort allows multiple executors to share the weight of responsibility. A joint executorship might be composed of a professional (such as a solicitor) to undertake the administrative duties of the deceased estate, and a family member to care for the pets and personal belongings of the deceased during Probate, and maintain open communication with other members of the deceased’s family. As a general guide, while having more than one executor is good insurance, having more than three can unnecessarily complicate decision-making.

Where there is more than one executor, the executors must act with joint authority on major activities, such as to defend the estate in court or to lease, mortgage or sell real property. Each of the executors can undertake the smaller duties of estate administration on behalf of their fellow executor and the estate.

Executor Of Estate – Expenses And Remuneration

An executor is entitled to be compensated for any costs they incurred while administering the estate. While a professional will be paid for their work, a friend or family member usually accepts the role without expectation of reward. Many testators will recognise the executor with a gift in the will, or the beneficiaries can reward the executor after their work is completed. Under section 68 of the Succession Act 1981 the court can authorise a payment of a commission or fee to the executor in an amount they deem appropriate.

Obligations Of An Executor Of Estate In Queensland

The guiding principle of an executor is that they follow the wishes of the testator as they are written in the will, in so far as these wishes are consistent with the law. An executor is often also a beneficiary under the will, but despite their own vested interest they are obliged to act in the best interests of the estate at all times. An executor is also duty-bound to act expeditiously, communicate clearly with interested parties, and attempt to mediate disputes between beneficiaries.

Breaches Of Duty

If the executor breaches their duty of care in regard to these obligations, the courts can hold them liable for any loss or damage. An interested party can apply to the court to remove an appointed executor if they feel that the executor has breached his or her duty. The court will review the original Grant of Probate, and the details of the executor’s breach of duty, and make a decision as to whether removing the executor is in the interests of the estate. If a suitable person is available to assume the duties, the court can appoint that person as an administrator to replace the dismissed executor.

If you have been appointed executor of an estate in Queensland we can guide you through the process. Please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.

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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