What are the duties of an executor or administrator?

INTRODUCTION                                                          

An executor is a person nominated by a testator to carry out the terms of a will.[1] The administration of the estate must be done in accordance with provisions of the will, as well as the applicable statutory and general law provisions.[2] There is no defined list of an executor’s duties, however the ultimate task is to manage the estate of the testator after their death. Due to the nature of the task, the will-maker will often feel an obligation to appoint a family member as executor without understanding the obligations of the role.[3] Executors have the option of renouncing the role, even after promising the testator to undertake the obligation,[4] as a person is not obligated to do a task they do not assent to.[5]

 DUTIES OF THE EXECUTOR

The below paragraphs set out the most common duties of executors.

Locating the Will

The executor, after the death of the testator, must locate the original will. Copies of the will may be stored at the deceased’s house. The original will may be at the testator’s lawyer’s office. The executor should seek legal advice as to the interpretation of the will’s terms and how to administer the estate accordingly.

The Funeral

It is the executor’s responsibility to attend to funeral arrangements and is usually done in consultation with immediate family members of the deceased. The executor is also entitled to the custody of the deceased’s body and is responsible for its disposal[6] (despite there being no property in the body of the deceased at common law). The executor must take into consideration whether the deceased made any directions regarding the funeral, burial and cremation. The executor should liaise with family regarding these matters as it can lead to dispute.[7]

Location and Protection of Assets

The executor must locate the assets and liabilities of the deceased and contact professionals to determine the nature and extent of the estate.[8]

The executor will then preserve the assets of the deceased person including their home and contents, pets and the assets of any business. In the case of business, the executor must have had powers conferred upon them by the deceased to deal with business assets.[9]

Applying for Probate

A Grant of Probate is a court order that is evidence of an executor’s right to administer the estate. It confirms the validity of the will and the executor’s authority to deal with the assets.[10] To obtain a Grant of Probate, the executor must apply to the a court of competent jurisdiction.[11] Where the deceased held an interest in real property in their sole name, or bank accounts with balances in excess of $50,000 and shareholdings valued at more than $20,000 will usually (but not always) necessitate a Grant of Probate.[12]

Taxation

The executor must ensure that all taxation liabilities relating to the deceased and the estate are paid in full. The executor has the power to sell assets of the estate in order to meet the debts of the estate, including taxation liabilities.[13]

Distribution of the Estate

When the assets are in possession of the executor and all debts have been paid, the executor distributes the assets of the state in accordance with terms of the will. This process requires determination of whether assets are distributed in specie[14] or whether the estate is converted to cash and distributed. If a beneficiary is under the age of 18 or there are specific terms relating to when a beneficiary can take their entitlement in the will, it is the executor’s responsibility to manage the funds until conditions are satisfied.

 

[1] Ken Mackie, Principles of Australian Succession Law (LexisNexis, 3rd ed, 2017) 319.

[2] Andrew Simpson, Australian Guide to Wills and Estate Planning, (Wiley, 2019) 21.

[3] Andrew Simpson, ‘Appointing the Right Executor’ (2007) Retirement & Estate Planning Bulletin 29.

[4] Craig Birtles and Richard Neal, Hutley’s Australian Wills Precedents (LexisNexis, 9th ed, 2016), 172.

[5] A person ‘cannot have an estate put into him in spite of his teeth’: Thompson v Leach (1690) 86 ER 391, 396.

[6] Williams v Williams (1882) 20 Ch D 659.

[7] Above n 2, 22.

[8] Above n 3.

[9] Above n 2, 23.

[10] Barnaby Grant, ‘Applying for Probate: Answers to Some ‘Not So Stupid’ Questions’ (2018) 40(6) Law Society of Western Australia, 26.

[11] The application will consist of court documents, including an affidavit of the executor and an inventory of assets and liabilities for the estate.

[12] Above n 2, 23.

[13] Pagels v MacDonald 54 CLR 519.

[14] The transfer of an asset in its current form rather than in the equivalent amount of cash.

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