An Executor is appointed by the Will to be the Legal Personal Representative of the Deceased and to carry out the wishes of the Will. The Executor role commences once the Willmaker passes away.
If there is no Will, the original Will cannot be located or if the Executors of the Will (and their legal personal representatives) are unable to act, an Administrator may need to be appointed as the Legal Personal Representative instead.
While the roles of Administrator and Executor are very similar, this factsheet relates to the duties of an Executor. If you are applying to become an Administrator, please contact RNG Lawyers for advice.
What are my duties?
The general duties of an Executor are as follows:
Arrange for the Funeral
Obtain a death certificate
Prove the Will by obtaining a Grant of Probate (if necessary)
Administer the Estate personally
Collect the assets of the Estate and preserve them for the benefit of the Estate and the beneficiaries
Ascertain and pay the debts of the Estate and any succession duties
Arrange income tax returns for the Deceased (to the date of death) and for Estate to the date of distribution
Keep proper accounts and records
Distribute the net assets of the Estate to the beneficiaries (but must not distribute to a beneficiary who is an undischarged bankrupt)
Is a Grant of Probate necessary?
The purpose of obtaining a Grant of Probate is to establish the “title” to the Executor as the personal representative. It is not always necessary to obtain the Grant.
As a general rule a Grant will be required where:
The Deceased owned real Estate other than as a joint tenant
The Deceased was living in Aged Care and had prepaid their accommodation (often referred to as an “Accommodation Bond” or a “Refundable Accommodation Deposit”)
Superannuation benefits are paid into the Estate and not to dependents directly
Where an account balance, investment or shareholding exceeds the relevant threshold
What is in the Estate?
In general terms, the Estate will comprise the assets and liabilities of the Deceased as at the date of death. There are some types of assets which may fall outside the Estate and may need to be dealt with differently. Common examples include:
Real Estate owned as joint tenants (this property will pass to the survivor)
Superannuation and life insurances
Interests in Trusts
For further information about dealing with such assets, please contact RNG Lawyers.
What are my rights?
As an Executor, you have the following rights:
You may renounce your appointment at any time before the Grant of Probate. For information about renouncement, contact RNG Lawyers.
If appointed with other executors, you must act jointly.
You have the right to obtain reasonable professional advice when performing your role (such as accountancy, financial and legal advice) and to claim these expenses from the Estate.
You have the right to approach the Supreme Court of Victoria for clarification of your rights and responsibilities if required.
You may be able to claim remunerationin some cases but this is not common unless you acting as executor in your professional capacity and/or the Estate is particularly onerous to manage. For information about commission, contact RNG Lawyers.
What happens if there is a dispute?
There can be issues with Estates even where the Deceased passes away leaving a valid Will. Common disputes include:
Someone challenges the validity of the Will (often these are claims that the Willmaker did not understand or that they were forced, manipulated or tricked into signing the Will)
Someone makes a Family Maintenance Claim
Executors are in dispute with each other
Beneficiaries are in dispute with each other and/or the Estate
A third party is in dispute with the Estate, such as a creditor or the Attorney who was acting for the Deceased before they passed away
Family Maintenance Claims
(“Testator’s Family Maintenance” or “Family Provision”)
A Will can be challenged where the Deceased failed to provide adequate support and maintenance for any eligible person to whom the Deceased had a moral duty to make provision. Any eligible person wishing to make such a claim must do so within 6 months of the date of the Grant of Probate unless the Court grants special leave.
Claims against Attorneys
As Executor you may apply for a compensation order if an Attorney for the Deceased under an Enduring Power of Attorney caused loss whilst acting in this role.
The time limit for such an application is within 6 months after the Deceased's death or if the Attorney has also died, within 6 months after the first death. The Supreme Court or VCAT may extend these time periods in very limited circumstances.
What to do if there is a dispute/may be a dispute in the future?
If the Willmaker is still alive and has the capacity revisit their Estate planning, it may be possible to foreshadow some of these issues and to make arrangements during their lifetime which will prevent or lessen future disputes.
If the Willmaker has passed away or does not have such capacity, it may still be possible to resolve the matter before it becomes a dispute.
RNG Lawyers has experience in such matters and can work with you and your family to resolve Estate issues and to commence relevant court applications where necessary.
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