What is an executor?
An executor is a person appointed by another in a will to act in respect of the estate of the testator upon his or her death. An executor is the legal personal representative of a deceased person. When a person dies without a will then the legal personal representative is known as “an administrator”.
The appointment of an executor is only effective following the death of the will maker. Once he or she has died then if you are appointed by the will as executor you should decide very quickly whether or not you wish to accept the position. You are under no legal obligation to do so. If you don’t want to act as an executor you will need to “renounce probate”. The testator may have discussed the appointment with you but frequently the executor is unaware of the appointment until death.
What does the executor have to do?
In the course of administering an estate, an executor will usually have to:
File an application for probate in some circumstances.
- Determine what debts and liabilities have to be paid.
Assemble the assets which will be used to pay debts.
Work out the order in which assets have to be used to pay debts. In some cases this will be set out in the will, otherwise there are laws which tell you which assets to use first.
Lodge taxation returns for the deceased and for the estate.
In some cases, arrange for documents to show that the executor is the legal owner of certain types of assets before these can be sold.
Distribute the assets to beneficiaries according to the terms of the will.
In some cases the executor will also be involved in making funeral arrangements.
What if there is more than 1 executor?
If there is more than 1 executor named in the will the forms need to be completed by all executors. It may be convenient to have only one executor proceed with the application in which case the other executor(s) may renounce their duties (see Renunciation of Probate below) or the application may be made in one executor’s name only. In this circumstance, the summons should include a clause that leave is to be reserved to the other named executors to obtain a Grant of Probate. The probate registry will also require proof that the remaining executors have been put on notice of the application and reserve the right to make an application at a later date.
How do I get the original will?
In order to perform your duties as an executor, you will need to have the original will. If it was not in the possession of the deceased, you must obtain it, by right, from the person or solicitor who holds it.
Should I have a ‘reading’ of the will?
The executor(s) can arrange to have a meeting of the family of the deceased and beneficiaries named in the will and explain the provisions of the will if they are not straightforward. This is not a requirement. Alternatively, it may be more practical to send a copy to anyone with a legitimate interest. If you do not do so, it may create suspicion and criticism which could lead to legal action against you.
These are at the discretion of the executor. Usually the arrangements are simply carried out by agreement between the family and in accordance with any express wishes of the deceased person.
If there are any difficulties then you should be aware:
- The executor is entitled to custody of the body of the deceased and therefore makes decisions in respect of it;
- The executor is responsible for the disposal of the body;
- The funeral arrangements are at the discretion of the executor;
- Directions in the will relating to the funeral or body of the deceased are not legally binding.
If you contract with the funeral director make sure the cost will not exceed the value of the assets of the deceased otherwise you will be liable to pay the balance.
Does the Court give me any help?
If any problem arises in respect of the administration or distribution of the estate or the meaning of the will then you can apply to the Court for its assistance. The Court will give appropriate directions and thus protect you from any liability. Usually costs of proceedings will be ordered out of the estate. If a problem does arise a solicitor may be able to advise you. If you need to get the help of the Court legal assistance is probably essential.
Can I be held personally responsible for what I do as an executor?
You are responsible for any loss which the estate incurs from your unauthorised acts.
The most difficult situation is where the deceased operated a business at the date of his death. Legal and other advice is considered essential in this case.Generally you should ensure that any debts you incur or may become liable to pay do not in total exceed the value of the assets of the estate.
If you see any problem arising at any time before you accept the office or during the administration of an estate we recommend you seek legal advice.
What if I don’t want to be an executor?
If you do not want to accept the office as executor then you should not take any steps which might indicate you have accepted the office (eg. arranging funeral, collecting assets or dealing with creditors) and you should “renounce” your right to be executor. This is done by signing a ‘Renunciation of Probate’ form which is then filed at the Court at the same time the application for Probate is made. The form should be signed by you before any adult witness and then should be filed at the Equity Registry of the Supreme Court with the will, or both documents should be given to any other named executor or the sole beneficiary named in the will.
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