If you have been appointed as an executor under a will, it is important to be aware of your duties and responsibilities in carrying out the role. Outlined below are some of the primary duties you will have.
1. Making enquiries as to assets and liabilities of the estate.
You will need to gather as much information as possible and any documents that are available in relation to the deceased’s assets and liabilities, such as bank and credit card statements, superannuation, insurance policies, shares or investment accounts and vehicle registration papers. A solicitor can assist with making these enquiries.
Notification of the death will need to be given to these institutions as well as any utilities providers such as water and electricity.
2. Making all reasonable enquiries for any subsequent will
An executor should satisfy themselves that the will under which they are appointed is the last will. There will usually be no doubt, however such matters as the length of time since the will was made, changes in relationships and circumstances may cast some doubt on whether the will under which you are appointed is the last. Searches should be made of the deceased’s personal papers, and enquires may be necessary of the NSW Trustee and Guardian and solicitors in the area of the deceased’s residence
3. Applying for probate
Once you have enough information to estimate the value of the estate, it is necessary to apply to the Supreme Court of New South Wales for probate. In some cases where the estate is of a small value, probate is not required. Before you can apply, a notice of the intention to apply needs to be published on the Supreme Court website. This notice needs to be published not less than two weeks before applying.
Probate will give you the legal authority to administer the estate in accordance with the will.
4. Preserving the assets of the estate
This includes securing property and ensuring that any property, vehicles and valuables are insured. You should make sure that assets with income earning potential are put to use, such as arranging for cash on deposit with bank accounts to be placed interest earning accounts.
5. Not to intermeddle with the assets of the estate until such time as probate is granted.
You must not deal with the estate assets until such time as probate is granted, except as necessary to pay funeral expenses and the filing fee on the probate application. Once probate is granted, you then become the Legal Personal Representative of the estate and have the authority to deal with the assets.
6. Defending any legal proceedings against the estate
Certain people are eligible to make claims for provision out of the estate. If this occurs, it is the executor’s duty to defend the proceedings or resolve the proceedings in the best interests of the estate and the beneficiaries. It is important not to distribute the estate until any claims are resolved or until 12 months have passed since date of death, where the executor is on notice of a claim. Executors can be personally liable for claims if they distribute the estate after being put on notice of a potential claim.
7. Administering the estate in accordance with the will
Provided there are no claims, you must administer the estate and distribute entitlements to beneficiaries without undue delay (however, distribution should not take place within 6 months of the deceased’s death).
