Executor of a Will: How Hard Can This Role Be?

Article Insights

John Bui’s articles from JB Solicitors are most popular:

in United Kingdom

JB Solicitors are most popular:

within Transport, Criminal Law and Employment and HR topic(s)

After a person has passed, they should have a legal personal representative who will carry out their last wishes in their Will. The executor of a Will is the only qualified person who can do this. Here are their main responsibilities according to the NSW Government:

Finding the Will of the deceased person. Sometimes, some people die without a Will, hence intestacy laws will apply.
Handling the deceased's funeral expenses, and whether it will involve burial or cremation procedures
Getting the death certificate
Collect assets, pay debts, attend to business interests, and sort out tax returns.
Find and notify all the beneficiaries named in the Will, and distribute assets to them
Inform organisations or multiple organisations about the death if they are beneficiaries of the Will.
Locate, protect, and list the deceased's assets and debts
Obtain authority to apply for a grant of probate or letters of administration

It's a no-brainer that executors should have the capability to conduct these responsibilities. After all, the executor must act in the best interests of the deceased's beneficiaries and commit themselves to the Will's instructions.

Who Can Be an Executor of a Will?

The Will-maker should appoint a responsible executor if they want to carry out their last wishes properly. Depending on a Will-maker's relationship with their family and friends, they can appoint either of them. If they want a more legally responsible and non-biased representative, they can also choose solicitors as their executor.

Executors can also turn down this obligation if they were appointed as one. They are under no legal obligation to act as one if they believe they cannot fulfil the responsibility. A person can turn down the role of an executor if they:

Are living interstate or overseas
Don't have the time for the demands of the role
Have concerns about managing family affairs
Are worried about the legal risks, such as Supreme Court trials

If executors do accept the role and eventually want to give up their role, they can transfer their role to another executor or a solicitor. They must do this before they start the estate administration process. The new executor will then shoulder all the duties of the previous one.

How Should Executors Handle the Deceased's Estate Assets?

Let's discuss the roles of an executor of a Will in detail. Their main role is to represent the deceased and manage their personal, financial, and legal affairs as per the Will-maker's wishes. Let's look at each of them.

1. Personal Affairs

Executors will need to arrange the Will-maker's personal affairs, such as burial and funeral arrangements. They also have the responsibility to preserve and maintain the assets of the estate until its distribution.

2. Financial Affairs

An executor's duties also extend to the financial affairs of the deceased. They must gather the estate's assets and pay liabilities before they divide the remaining assets. So, they may have to gather the following:

Bank statements. The executor has to notify banks, financial institutions, and government agencies of the deceased's death. Depending on the Will-maker, they may have more than one bank account or have bank accounts with their spouse.
Investment portfolios
Superannuation (pension)
Real estate
Valuable possessions like art, jewellery, and vehicles. Sometimes, the executor of a Will may also be instructed to sell assets.

Once the executor has paid all debts and expenses, they will distribute the assets to the beneficiaries in the Will.

3. Legal Affairs: Will Disputes and Legal Proceedings

Every beneficiary of a Will believes that they should receive a fair share. Unfortunately, some beneficiaries do not receive the right amount of inheritance. The result? Will disputes. Legal proceedings in court. This puts the executor in the hot seat since he will be the one responsible for distributing the estate and defending the Will's wishes.

Legal affairs will always include disputes about the Will. When beneficiaries want to either contest or challenge the Will, executors will need to accommodate their queries or complaints. The executor named in the Will generally has the responsibility to defend the estate during any legal proceedings.

So, yes, executors should already know that they might have a sour relationship with some beneficiaries.The executor must also act diligently to finalise the estate within a reasonable time frame, which is generally expected to be within a year.

What if There Is No Will?

This was mentioned earlier in this article, but let us explain this further, and what can happen if such a case occurs.

Dying without a Will can complicate a lot of things, especially for the beneficiaries. They may wonder where all the assets will go since there is no Will. Moreover, they may also feel jealous if a family member or a person named in the Will receives more than they do because of intestacy laws.

There is a particular hierarchy of who will receive the inheritance of the deceased if they had no Will. The estate is distributed to the following classes of relatives, moving down the list only if no relatives exist in the preceding class:

Surviving spouse
A surviving spouse or a domestic partner (multiple spouses)
Children
Parents
Siblings
Nieces and nephews
Grandparents
Aunts and uncles
The State

Now, you can clearly see the disadvantages of a person having no Will. What if the deceased person wanted to give some to their grandchildren, but failed to make a Will? What if they don't want any of their inheritance falling into the hands of their spouse, because of their rocky relationship with them?

FAQs About the Executor of a Will

Q: Do executors get compensation for their duties?

A: This will depend on what the Will says. If there are no compensation clauses, then the executors won't get anything. However, some executors may receive commission calculated using the estate's value, which ranges around 0.5% to 3%

Q: What is a grant of probate, and why are executors responsible for it?

A: A grant of probate ensures that the will is legal and valid and this is one of the first things an executor of a Will should do before they administer the estate. They must first apply for this grant from the court before they can act as an executor of the Will.

Q: Oh no! I'm the executor and the tax office said the estate still owes tax money. What will I do?

A: Now, this is an unfortunate case. If the deceased's estate still owes money to the tax office after asset distribution, the executor may be personally responsible for repaying the missing amount. Executors are also responsible for any losses incurred by the beneficiaries if they fail with asset sales.

Q: What is a family provision claim?

A: Beneficiaries or any other person who has an interest to the deceased's estate can apply for this. They must file the family provision claim with the court within 12 months of the date of death to contest a will.

We Can Act as an Executor of a Will

Yes, you read that right! You can choose JB Solicitors as an executor because we know the ins and outs of Will and Estate law. There will be no biases and no special treatments for each beneficiary. We will only uphold fairness and adhere to Australian law standards as we make your Will. Should you have any issues with a Will's provisions, we can help represent you at court.

So, what are you waiting for? Contact us today and make the perfect estate plan with us and for your beneficiaries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.