Being an Executor

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What is an Executor?

If you have been named an executor in a will, the deceased wanted you to administer his or her estate, perhaps with another person.

There can be any number of executors named in a will, although one or two is usually considered sufficient.

Your fellow executor could be another member of the family, a friend or myself (Bernie Hayward).

In this case I will charge for services performed in connection with the administration of the deceased's estate. If those services are just the same as if I am instructed to act for the executor, the fees will be exactly the same. If I have to do more than this (ie. arranging the funeral or cleaning out of the house) then additional fees may be applied for. Any such application would be for commission and would have to be approved by the Supreme Court.

If you are the sole executor, you may need my assistance to deal with the legalities of administration.

What is an Executors responsibilities?

In general terms, an executor's duty is to take charge of the deceased's assets and property, see that the debts and taxes are paid and finally to distribute the assets to the beneficiaries named in the will.

You begin by finding out the assets of the deceased. The list could include a home, car, money, a bank or building society accounts, furniture, household appliances, jewellery, shares and other investments insurance policies, superannuation and holiday pay from work. If assets are not being sold but passed to beneficiaries, they may have to be valued to be fair to all beneficiaries.

You should prepare a list of the beneficiaries, their names and addresses and (if less than 18) their ages.

An advertisement is placed in the Sydney Morning Herald asking for any claims against the estate. These are debt claims. We will do this for you. We have to wait 14 days after the advertiesment is run to see if there are any claims.

Next we will apply to the Probate Registry of the Supreme Court for a Grant of Probate. Probate is an order of the court saying that the will is valid and that the executor has the right to administer the estate.

When applying for probate you will need to sign a number of forms which we prepare. You will also need documentary evidence of death and may need proof of proper witnessing of the will, and details of assets and liabilities, among other things. These are all things we can advise on and help with.

What if the Estate it small?

Banks and building societies have varying rules which allow access to the deceased's funds without a grant of probate if the estate is very small.

Enquiry should be made of the financial institution concerned to ascertain at what level it will insist on a grant of probate before the executor can deal with the funds.

Where the estate is small that is less than $50,000, no court fees are payable if an application for probate is necessary.

What do I do after Probate is granted?

Once probate has been granted, the executor must collect the deceased's assets and pay any debts or taxes including income tax the deceased owed. In view of possible liability for capital gains tax it is important to find out the date and cost of acquisition of the deceased's assets.

Funeral expenses are to be paid first and there is a particular order in which any other debts must be paid. After funeral expenses are paid, the executor is entitled to claim any expenses relating to the administration of the estate before other debts are paid.

Once debts have been paid, assets are either distributed according to the terms in the will or they are sold so that money can be divided among the beneficiaries.

As your solicitor, I will contact any financial organisations and companies in which the deceased had money invested in order to find out their requirements to realise those assets. You may become involved in selling various pieces of the deceased's belongings such as jewellery, a boat or car.

A bank account will have to be opened, in the name of the estate, into which all funds owed to the estate must be deposited and from which debts must be paid. With estates that will not continue for a long time, our trust account can be used for this purpose.

When & how are the assets distributed?

When all assets have been identified and, if necessary, sold to raise cash, and all debts have been paid, the remainder of the estate can be distributed to the beneficiaries. Where appropriate we will be published in the Sydney Morning Herald a special notice requiring anybody with a claim against the estate to provide particulars of the claim within one month.

Where appropriate and instructed by you, I will prepare a distribution statement for the beneficiaries. This may be given to them when they receive their share of the estate showing what the assets were, how much money resulted from any sale of assets they raised and what expenses and debts were paid from the proceeds.

Where an executor is applying to the court for commission for his or her administration, detailed accounts have to be filed with the Probate Registry and all payments and receipts by the executor properly approved. I can prepare these for you if you wish.

What if there is no Will?

When a person dies without a will, the law applies the order of Intestacy to determine who are the beneficiaries of the estate. We can give you advice about these laws if necessary.

As there is no will there will be no executor. In such situations, the major beneficiary (or one of them with the consent of the others) can apply to the Probate Division of the Supreme Court for Letters of Administration. This is similar to a Grant of Probate but must be supported by more evidence as to who is entitled to the estate.

If you are the appropriate person to apply for Letters of Administration, we can prepare the application and advise on the supporting material required. Once granted, the Letters of Administration make you a personal representative of the deceased and you then proceed in much the same way as an executor.

Will I be paid for being an Executor?

You are entitled to apply to the Supreme Court for a commission for you work as executor. But if you are also named as a beneficiary in the will the amount you receive will be presumed to be payment for your efforts and you will not be successful with a commission claim. If your efforts have not been very great, the Court may refuse to give you any commission. It is not common to apply for commission.

If you do not want to be an executor (prior to dealing with assets of the estate) you can renounce the executorship by signing a form called a 'renunciation'. We can then file it with the Probate Registry of the Supreme Court.

How will B. Hayward & Co. help me?

We can:

● Inform you in detail about the rights and responsibilities of an executor;

● Prepare and help you to complete the forms needed to apply for probate;

● Assist you to identify and collect the deceased's assets;

● Advise you about the legal order in which debts must be paid and the remaining assets distributed;

● Explain the legal order of distribution of the estate in a case where there is no will;

● Help you to draw up the report and statement on the assets for the beneficiaries.

Please note that this brief is for general information and you should make an appointment to see Bernie Hayward for a more detailed explanation.

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