I’m the Executor of an Estate; What Happens Now?
Have all of your questions answered and be supported through every step by our family law experts.
Executing an estate is an important responsibility. You may not have known that you were nominated as the executor of an estate in a will and may feel overwhelmed.
Rafton Family Lawyers are here to help you understand your role and make the best decisions moving forward.
Being appointed as an executor of an estate occurs when a person dies leaving a will that appoints you as the executor (also known in some situations as the trustee of the estate). Often an executor is a family member or professional person known to the deceased and that person can, in a lot of situations, also be a beneficiary under the estate.
The team at Rafton Family Lawyers can assist if you have been appointed an executor as in the majority of cases you will need legal advice and assistance to make an application for a Grant of Probate which is applied for via the Supreme Court of NSW. Whilst an executor can in some situations try to undertake this process themselves, it is highly recommended that you do consult a lawyer as it can be a complex legal issue and you will require expert advice in this area.
Our team can provide assistance at an office near to you with services available at our Penrith, Glenmore Park, Richmond, Parramatta, St Marys and offices and services across Western Sydney and the Hawkesbury region.
What does it mean to be an executor of an estate?
Probate is the legal process where the court validates a will and grants the executor with the power to handle the deceased’s affairs.
Probate is necessary when proof is required for the executor to act on behalf of the deceased; for example: if the executor needs to access the deceased’s bank account to distribute it to the beneficiaries of the will.
Arranging the funeral
It is the executor’s responsibility to make the funeral arrangements according to the wishes of the deceased. You will need to make sure that religious requirements are met and hear the families wishes for laying the body to rest.
The executor will need to consult the will to understand if the deceased left instructions to be cremated or disposed of in another way.
Apply for and obtain a grant of probate
Being appointed executor of an estate is a very important role. It means that somebody as part of their will and estate planning has appointed you to oversee the administration of the estate after they die. In some cases, executors are notified after the person dies and may not be aware of this important appointment. In other cases, it may be a loved one, close family member such as a spouse or parent and the executor is well aware and ready to proceed.
In any case, an executor must have several important qualities including:
- They are expected to be reliable and act honestly
- They need to be competent and able to give instructions
- They should ideally be located in NSW and/or be available to execute important documents for filing of an application for Probate in the Supreme Court of NSW if this is where the assets of the estate are primarily located.
- They must be able to maintain independence and oversee the estate without favouring one or more beneficiaries (including themselves if this applies). In some cases this can be the most difficult task.
Once an executor is aware of their appointment, there are several things they must do. It is highly recommended as soon as they are notified that the deceased has passed, they should make attempts to locate an original copy of the will or provide a copy to a solicitor as soon as possible. The executor would also be expected to arrange the funeral and funeral expenses in conjunction with a solicitor, if appointed.
The executor will also be expected to confirm the assets and debts (liabilities) of the estate as well as notify important institutions such as banks, Centrelink and the Australian Taxation Office.
The executor will also be required to preserve or maintain the assets during the process of administration and should not do anything that unnecessarily depletes or reduces the value of assets. It is important also that the executor does not use an asset for their own benefit such as moving into a residential property unless this is specifically provided for in a will.
The executor during the process of probate needs to account to all beneficiaries as is an expectation of them of all estate expenses and the assets and liabilities and this is usually done in conjunction with a lawyer when the application for probate is being filed. They should also be completing a tax return for the estate if appropriate and liaising with the Australian Taxation office.
Once all of these matters have been attended to and the Grant of Probate is received, after a period of six months from the date of death the estate can then usually be administered except in exceptional circumstances.
Because of the complexities listed above, in the vast majority of cases where assets are involved in estates the executor should seek advice from an experienced estate and wills lawyer. Please contact our team for estate and wills advice at our Penrith, Richmond, Parramatta, Glenmore Park, St Marys or Sydney offices.
Call in the estate
Calling in the estate is the process of transferring the deceased’s assets into the name of the executor. You will need the grant of probate, death certificate, and other transitional forms for each type of asset.
It is also the executor’s responsibility to collect any debts owed to the deceased unless the right to collect these debts ceased when the testator died. Joint assets held by the deceased and another party are not called in as part of the estate as ownership is given to the other party.
Protect the assets of the estate
The executor may be liable if the assets of the estate become invalid or depreciate significantly because they were not distributed appropriately or at the right time. It is important to seek professional advice and keep track of all accounts and assets outlined in the will.
Making sure financial requirements are met
The executor must manage the deceased’s accounts and pay the debts of the estate. You will need to organise for these debts to be paid with funds that have not been left to a beneficiary.
We can help you to manage any remaining debts of the estate so that all funds are distributed appropriately.
Arranging for assets to be distributed to beneficiaries
Once the above tasks have been completed, the deceased’s estate will need to be distributed to the beneficiaries within 12 months of the death of the deceased (NSW). This time frame varies between states.
You will need to contact the beneficiaries of the will and arrange for them to take ownership of the assets left to them in the will.
What should I do next?
The role of the executor can be complicated and time-consuming. It is normal to be unsure of what you need to do. You do not have to accept the role of being an executor and can nominate another executor if you are unable to take on the responsibility.
Rafton Family Lawyers are here to answer your questions and help you fulfil the requirements of the will correctly. If you would like more information, please contact one of our wills and estates lawyers now.
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