Help! I have been asked to be an executor of someone’s Will

Adele Anthony

Adele Anthony

Principal Lawyer at Your Legacy Lawyer

You might have been asked by a family member if you could act as the executor of their estate after they die.

What does this mean for you?

Executors are responsible for administering peoples’ estates after they die. When making a Will, Will-makers have to choose people (family members, friends or their solicitor or accountant) to be their executor(s).

You might have heard the word “legal personal representative”. A legal personal representative is another way to describe an executor or administrator of a person’s Will.

What are your obligations?

Executors in Queensland have various obligations. These include but are not limited to:

  • Locating the deceased’s Will
  • Arranging the deceased’s funeral service
  • Identifying the deceased’s assets and liabilities
  • Calling in the deceased’s assets
  • Obtaining valuations of the deceased’s assets
  • Paying the deceased’s funeral expenses and any outstanding debts and taxes owed by them
  • Maintaining and protecting the deceased’s assets
  • Informing the deceased’s beneficiaries of their entitlements
  • Providing a full inventory of the deceased’s assets to the Court if a Grant of Probate or Letters of Administration is required
  • Distributing the deceased’s assets in the manner set out in their Will which could include transferring or selling such assets
  • Defending the deceased’s Will if someone challenges or contests it

 

Are there any other obligations owed by executors?

Executors also have a fiduciary obligation in relation to the deceased’s estate and beneficiaries.  This obligation involves trust particularly where the relationship is between a trustee (executor) and a beneficiary. Therefore, the executor’s main obligation is to act at all times in the best interests of the deceased’s estate and not in their own best interests. They must also not profit from their position as a deceased’s executor although there is a court authorised payment that may be made to the executor for their services.

If an executor breaches their fiduciary obligations, severe penalties may apply.

What happens if more than one executor has been appointed?

If a Will-maker appoints more than one executor, they must act jointly (in Queensland, probate will only be granted to four executors maximum at any one time). This means that the executors must consult with each other and together agree on decisions in relation to the administration of the deceased’s estate.

Obligations in relation to the deceased’s body

As mentioned above, one obligation of an executor is to arrange for the deceased’s funeral. More importantly they have an obligation to arrange for the deceased’s body to be disposed of.

Sometimes Will-makers leave instructions in their Will in relation to how they want their body disposed of and how they want their funeral conducted. These instructions are usually not enforceable, and the executor may make their own choices in this regard and such choices are final (although they should consult with the deceased’s family first).

This does not apply, however, if the Will-maker has provided in their Will that they wish to be cremated. If this is the case, the executor must legally follow these instructions and arrange for the deceased’s body to be cremated.

Protection for Executors

There are some legal protections for executors who have commenced distributing the deceased’s assets to beneficiaries.

Action cannot be taken against an executor who has distributed part of the deceased’s estate if the distribution was properly made to maintain and support the deceased’s dependent spouse and child(ren). This is even where someone has notified the executor that they intend to challenge or contest the deceased’s Will.

If the executor has distributed the estate’s assets in accordance with the deceased’s Will, they will be protected.

If the executor made the distribution no earlier than 6 months after the deceased’s death and had no notice of any application or intended application against the estate, they will be protected.

If the executor received a notice that an application was to be made against the estate and nine months had passed since the deceased’s death and Court proceedings had not yet commenced (nor had they received any notice that Court proceedings had commenced), they will be protected if they commence distributing the estate’s assets to the beneficiaries.

Taking legal action against executors

Executors who fail to perform their duties and obligations, in the best interests of the deceased’s estate, may face legal action.

A Court may make any orders it deems fit, including orders for damages, in favour of an aggrieved person entitled to make application, should this occur.

The same applies to an executor who wastes the estate’s assets or uses estate assets for their own use (where the deceased’s Will does not provide for this).

What if you don’t think I can deal with all these obligations?

If the Will-maker asks you to be their executor, you can refuse.

If you don’t wish to act as executor following the Will-maker’s death you can renounce the executorship. This will require you to complete and sign a Renunciation of Probate or Administration with the Will form.

The deceased’s estate, however, cannot be left without somebody available to administer it. If you are the deceased’s only executor, you will need to find someone else to replace you in this role (this could one of the deceased’s beneficiaries or the Public Trustee).

If probate or letters of administration have already been granted and you have commenced administering the estate (paid funeral expenses or debts), you cannot renounce without providing valid and compelling evidence to the Court as to why you should be allowed to renounce. The Court may allow this as long as there will be no disadvantage to the beneficiaries or creditors of the estate by you renouncing.

If you have any concerns or require legal advice in this regard, please contact Adele Anthony, Your Legacy Lawyer on 0417 012 991 or email at adele.anthony@yourlegacylawyer.com.au.

Be prepared

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