If you have made a Will, as we should all definitely do, you will have named one or more people to act as Executor. But are you an Executor yourself under the Will of a family member or friend? And do you know what an Executor should do? What are the duties and obligations of an Executor?
The purpose of this article is to provide some basic information about the responsibilities which attach to this role.
What does an Executor do?
As an Executor, you are the person appointed in a Will to be legally responsible for taking control of the deceased person’s estate. Usually you will first sort out the finances and settle any outstanding debts and taxes.
Then you will identify the remaining assets of the estate and distribute them in accordance with the terms of a valid Will of the deceased. In carrying out these functions you are “administering” the deceased person’s estate.
One thing that should be noted is that that legal obligations relating to executors can vary according to state law. So make sure to obtain legal advice if you have any uncertainty.
Can an Executor also be a beneficiary under the same Will?
The short answer to this is “yes”, and although not always recommended, it is not unusual. Most people appoint close family members as Executors. If there are additional beneficiaries as well as yourself, they are likely to take close note of how you administer the estate in your role as Executor.
An Executor is in a position of significant trust and confidence and your primary duty is to act in the best interests of the estate at all times. This means that you must be careful to avoid any conflict of interest between your duties to the estate and your own personal interests.
An Executor must not make a profit from their position. However, it is possible for a court to authorise payment to an Executor for their services. If Executors are family members or close friends of the deceased, they do not usually request compensation.
The key duties of an Executor
As an Executor you are expected to be diligent, impartial and honest in carrying out your role. The below list of responsibilities is by no means a complete one. In some cases, the deceased may have specified additional requests and obligations in their Will. Also in their Anticipate Life account, which can contain vital information for the Executor in regards to the other components of a person’s life, not in the Will.
1. Locate the original Will and arrange for filing with the local Probate Court
An Executor should first locate the original Will. This will be easier if the deceased has told someone or left a record of where the Will is located. Ask family members if the deceased had an account with Anticipate Life. This account stores end of life and other information recorded by the subscriber, including the location of their Will.
2. Notify all beneficiaries
The Executor must notify all beneficiaries (wherever they are located) of any entitlement, bequest, or gift to them under the Will.
3. Help arrange the funeral
Family members usually make the necessary arrangements with a funeral provider. Consultation with family is of course appropriate but the Executor has final responsibility for the funeral procedure.
You can check if the deceased had a pre-arranged or pre-paid funeral plan or left any funeral wishes. The deceased may have recorded their funeral wishes in their Anticipate Life account. This will allow you to follow their personal requests and instructions.
4. Inventory of the Assets, Debts and Liabilities of the deceased
Executors must determine the total value of the deceased’s estate. They must pay any outstanding debts or liabilities (mortgage payments, utilities and similar bills) from the estate. And arrange for any monies owing to the deceased to be paid into the estate.
Executors should also ascertain, maintain and keep safe all the assets and personal property forming part of the estate until final distribution or sale. Arrange for qualified professionals to value any real estate or other significant assets which form part of the estate. Their Anticipate Life account should contain this information to help the Executor.
Executors usually prepare financial statements for the estate. And in some states, they must file a detailed inventory of assets with the court.
5. Obtain Death Certificate
The Executor will need to obtain a death certificate from the relevant state Office of Births, Deaths and Marriages. This office issues a certificate once the death is registered with it. How long it takes to receive the certificate depends on the cause of death, and if an coronial inquiry is required. In Australia, you can apply for the certificate via online or postal application but it may take several weeks before you receive it.
6. Apply for Grant of Probate (if required)
The Executor may need to apply to the relevant state court for a Grant of Probate. This is usual for estates where larger amounts are to be paid out of, or paid into, a deceased person’s estate as part of the administration. You can obtain legal advice as to whether Probate is necessary or not and seek legal assistance with any court application.
You will need a death certificate in order to apply for a grant of probate. And most financial organisations such as banks, superannuation funds and insurances companies, will require a Grant of Probate. Otherwise they may not allow the Executor to deal with funds or assets of the deceased.
7. Cancel services, utilities, redirect mail
Family members may assist with these tasks if the deceased lived alone. But make sure these matters are not overlooked. Consider utilities such as electricity, gas, water. Also internet, landline and mobile phone, subscriptions, lease or tenancy agreement, social media accounts.
Australia Post allows mail redirection for up to 12 months to persons administering a deceased estate within Australia. The Australian Death Notification Service allows you to notify multiple organisations of a death through one online platform.
8. Make arrangements for care of any pets
If the deceased person had pets the Executor should ensure they are cared for. The deceased may have already appointed a guardian for their pets or recorded their wishes in their Anticipate Life account.
9. Distribute assets to beneficiaries
After settling all accounts of the estate and after Probate has been granted, the next step is to make distributions from the estate. Do this as soon as practicable and in accordance with the terms of the Will of the deceased or through the letter of wishes in their Anticipate Life account.
10. Notify any relevant Government Agencies and other institutions
These may include:
- Social Services agencies, such as Centrelink, if the deceased person received any government or Centrelink payments, pensions or other benefits, or from the Department of Veteran’s Affairs. In these cases the Executor should notify the relevant departments in order to cancel any benefits.
- The Australian Taxation Office must be notified if the deceased person has ever submitted a tax return and has a Tax File Number. An Executor is also responsible for lodging a final tax return for the deceased person and their estate. Obtain professional assistance if you need to ensure all tax obligations are met.
- Banks and Credit Card companies. If the deceased had an Anticipate Life account it is likely to contain details of bank accounts and credit cards, as well as other key financial information which can be accessed by authorised persons. You can close down any sole bank accounts of the deceased, once administration and distribution is finalised. Any accounts set up solely for estate administration purposes can also be closed.
If there is more than one Executor, they will exercise their powers jointly. They will need to consult each other to reach agreement on decisions relating to the administration of the deceased estate.
A testator (person writing the Will) can appoint as many executors as they wish although it is usual to appoint no more than two. This avoids delays and complications arising from having multiple parties who must confer and give consent. Also, the courts in some states will not grant probate to more than four persons at any one time.
Other duties of Executors include defending the Will in the event that litigation is commenced against the estate. There are statutory legal protections for Executors in certain circumstances.
As an Executor, you can decline to accept your appointment or resign from the role. Anticipate Life account holders will receive a reminder, as will the nominated Executor, to confirm the role. Be aware that the administration of some estates may take longer and be more complicated than others. Always obtain legal advice if you need to clarify any aspects of your role as Executor before you accept it.
If the deceased was an Anticipate Life subscriber, your task as an Executor will be much easier. You can finalise administration of the estate more quickly, which can be a relief to all parties concerned.
Anticipate Life is a single, safe repository for a subscriber to record much of the information which an Executor will require to administer their estate. This information can be readily accessed by authorised persons when needed. And it avoids much of the delay and stress involved in searching for separate documents and pieces of information. As an Executor you can use this record of information to follow the express wishes of the deceased.
For further resources on end of life planning and related matters visit our Anticipate Life website.