You’ve just received a call from a solicitor telling you that you’ve been named as the executor in someone’s will. Hopefully you already knew this but that’s not always the case. What do you do?
First of all, don’t panic! You are free to choose whether you want to accept the role. At first it can seem like an honour to be someone’s executor, after all they are trusting you to look after their assets and fulfill the wishes they left in their will. While this is true, acting as an executor is not without its challenges. This is especially the case for complex wills, large estates and beneficiaries who don’t see eye to eye. So give it some thought and don’t accept the appointment lightly. Once you have accepted the appointment, while possible to resign as an executor, the process can be costly and difficult.
If you decide to accept the appointment, your first responsibility is to arrange the funeral and burial or cremation. If the will hasn’t already been located, this will be next and the beneficiaries notified.
You’ll then need to consider whether a grant of probate is necessary. This will depend on the assets of the estate. Each asset holder will have different rules about whether they are prepared to transfer the asset without the grant.
The administration of the estate now begins in earnest. This involves collecting in and preserving the estates assets and ascertaining its debts. If it becomes apparent that the estate’s debts exceed its assets, the estate will be insolvent and you should seek legal advice urgently as this may change the way the estate is administered.
Once all the estate’s debts have been paid, each beneficiary’s entitlement can be ascertained and paid. This is not always as easy as it sounds as some assets may have been sold to pay of debts and beneficiaries may have their inheritances reduced proportionately to account for the estate’s debts. It is wise to again seek legal advice where this is necessary.
Once the various entitlements of the beneficiaries are paid, an executor will often find themselves continuing to act as trustee of any trusts created under the will. Such trusts can last for many years so you should take this into account when deciding whether to accept the appointment.
Throughout the administration of the estate, the executor has various obligations, such as completing and filing tax returns for the deceased and the estate and must comply with a raft of legal duties. You should consider seeking legal advice in this regard. Failure by an executor to comply with their duties can leave them personally liable to aggrieved beneficiaries.
If you’ve been named as an executor, or have already accepted an appointment, get in touch for an obligation free chat about the various ways in which we can help.
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In keeping with our reconciliation commitment, Generations Law would like to acknowledge the First Nations people as the original inhabitants and traditional custodians of the lands on which we operate and pay our respects to all Elders past, present and emerging as they hold the memories, traditions and culture of these lands and thank them for their wisdom and guidance. These include the Yugarabul, Jagera and Turrbul people in and around Brisbane, the Goenpul & Jandawal people of Moreton Bay, the Kombumerri people of the Yugambeh language group of the Gold Coast and the Gubbi Gubbi people of the Sunshine Coast.