In this information sheet we cover the duties of an Executor, their obligations, and whether they will be paid for acting as Executor of a Will.
An Executor is a person appointed under a person’s Will to be the personal legal representative of the person’s estate after they have died. The obligations of Executors is set out below.
There is no limit on how many Executors the Will-maker can appoint.
A trustee (usually the executor) is the person who holds and manages estate assets until those assets are disposed of in accordance with the Will including ongoing trusts, where assets are held in the interests of certain beneficiaries until a later date.
Trustee obligations generally commence once the executor’s obligations are concluded. A Trustee may have significant ongoing duties, obligations and powers to act in the interests of the beneficiaries. This may require managing and investing assets and paying income and/or capital to beneficiaries. A trustee may have significant discretion in the way in which they exercise their powers.
It is very important that trustees seek professional legal and financial advice to set up and maintain trusts appropriately.
You can officially ‘renounce’ (or give up) your appointment as executor at any time before the grant of probate by filing a special form with the Supreme Court, provided you have not intermeddled in the estate and dealt with estate assets.
Once you have commenced in your role as executor and started dealing with the estate property, you are obliged to see the job through to completion. If you become incapacitated, your nominated attorney can act in your place. If you pass away, the executor under your Will may seek approval of the Court to be appointed in your place once probate of your Will is granted.
The role of the executor is a very important job. You become the personal legal representative of the estate, and you have the function of carrying out the deceased’s intentions with respect to their estate.
Some of the functions and obligations are as follows:
– Attending to funeral arrangements and consulting with family about the disposal and interment of the deceased’s remains.
– Carrying out all necessary searches to locate the original Will.
– Identify the beneficiaries.
– Make proper searches and enquiries to identify all assets and liabilities.
– To notify all relevant creditors, insurers and banks of the deceased’s death.
– Make an application to the Supreme Court to prove the Will. This is called Probate.
– Sell, call in or transfer the estate assets in accordance with the Will.
– Attend to the payment of estate debts.
– Distribute the assets in accordance with the Will.
– Defend any legal proceedings on any reasonable basis or settle claims where necessary on reasonable terms.
Payment for services by a non-professional executor is called a ‘commission’. Payment can be claimed by an executor for their pains and troubles in acting as executor and trustee, but such payment, unless the terms are stipulated under the Will, must be determined by the Court or by agreement with the beneficiaries.
However, there is a presumption that a gift to an executor under a Will is made on the basis that it is given to compensate for the executor’s efforts. The entitlement may also depend on the size of the gift made and the extent of the executor’s work.
Any claim for commission must be a ‘just and reasonable’ amount for the time and trouble encountered by the Executor in fulfilling their duties.
As executor you have an obligation to seek whatever professional advice is necessary to ensure that you carry out your functions properly and in accordance with the law.
It is advisable to obtain the assistance of a legal adviser experienced in estates to assist you through the process of obtaining probate of the Will (if necessary) and administering the assets thereafter. The process can be very complicated and there are strict limitations on how and when various processes must take place.
At The Law Office of Conrad Curry we have decades of experience in estates law and practice. We are here to help. You can either book an appointment online or call us on (02) 4050 0330 for an obligation-free consultation.