Executors

An executor is appointed in a Will to manage the willmaker’s estate when they die. An executor is also known as a Legal Personal Representative.

The role of executor only comes to life after the willmaker’s death. An executor will need to make a decision after the death of the willmaker about whether they want to be the executor and take on the role. There is no legal obligation to be an executor if you are appointed under a Will. If you do not want to be an executor, you can renounce from the position. This is done by completing a renunciation form.

The Executor’s role

The executor’s role is to give effect to the deceased’s Will and administer the estate of the deceased who appointed them as their executor: The role of executor will likely include:

  1. Arranging and paying for the deceased’s funeral;
  2. Making an application for a Grant of Probate if required;
  3. Determining what debts and liabilities need to be paid and paying those debts;
  4. Identifying the assets of the estate and taking action to preserve them;
  5. Attending to any tax returns for the deceased and for the estate;
  6. Distributing the estate in accordance with the wishes of the deceased as set out in their Will; and
  7. There also may also be , in some circumstances, changes to the deceased’s Will that need to be dealt with.

The Will appoints more than one Executor

Where there is more than one executor named in the deceased’s Will, the executors will need to act jointly, that is, together and unanimously. All forms will need to be completed by all executors. Sometimes having multiple executors can be a burden and can slow down the estate administration process. It may be more convenient to have only one executor to act and the others to renounce from their positions as executors. That said, there is no reason why multiple executors cannot work and sometimes this can be of benefit, for example, all the deceased’s children.

Do I need the original Will if I am the Executor?

You will need the original Will to be able to perform your role as executor. Often the Solicitor who drafted the Will will hold the original in safe custody. The Solicitor holding the original Will will require a certified copy of the Death Certificate and identification from you before the release the original Will. If the Will is not able to be found in the personal papers then you will need to make enquiries to find it.

Informing the beneficiaries that they are named in the Will

The executor is responsible for taking reasonable steps to locate and notify all beneficiaries named in the Will. Even if beneficiaries live overseas, the executor must attempt to locate them and notify them of the deceased’s death.

Debts and liabilities of the Estate

It is the executor’s responsibility to establish what debts and liabilities the deceased had when they died. This includes funeral expenses, income tax, fees for administering the estate and out-of-pocket expenses along with other debts such as loans or credit cards (unless there is appropriate insurance cover).

Selling estate assets

It may be necessary to sell assets of the estate. This will depend on the terms of the Will, the nature of the estate and the attitude of the beneficiaries of the estate. It is the role of the executor to sell or transfer assets to the beneficiaries. This includes all assets such as the home, land, shares and investments. In doing so, they must take into account any costs of sale and any capital gains tax.

If the deceased owned or operated a business

As with the deceased’s other assets, the executor is responsible for managing and dealing with the business interests of the deceased. The executor may need to wind up the business or sell it.

Estate tax returns

Multiple tax returns may need to be completed on behalf of the deceased estate. As executor, you will likely need to talk to a tax accountant and provide necessary information to them about the estate to enable the returns to be done. It is not usually wise to distribute the estate before finalising all tax matters.

Liability of Executors

Potentially the executor might be held responsible if something happens to the assets of the estate. It is important for the executor to ensure that all assets including property, collectibles and investments are safe and to arrange insurance protection if needed.

Problems with administering an estate

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 and ask for its help. The Court will give directions and this can help to protect you from any personal liability.

If you find yourself in this situation, you should seek legal advice quickly before taking any future steps.

Can I be paid to be an Executor?

Yes you can but usually only with a Court’s approval.