What is an Executor?
An Executor is a person chosen by a Will maker to carry out the terms of the Will.
What are an Executor's duties?
Executors are held to high standards by the law. More specifically, the relationship between an Executor and beneficiaries under a Will is known as a ‘fiduciary relationship’. This means that there is a special relationship of trust, confidence and reliance that exists between Executor and beneficiary. The duties of the Executor must be discharged with due care and loyalty to the beneficiaries.
What are the rights of the Executor?
Under section 49 of the Victorian Administration and Probate Act 1958, an Executor is under no legal obligation to distribute the Estate of the deceased before the expiration of one year from the death of the deceased. This may be useful if the Executor is experiencing pressure from beneficiaries under the Will to distribute earlier
Who is the Executor?
If the deceased has a Will, they will have nominated their Executor in the Will. If the deceased has not nominated an Executor, the Supreme Court will appoint someone to administer the Estate. A person appointed by the Court is called The Administrator.
If the deceased does not have a Will, the court will usually appoint the next of kin to administer the Estate. This role will often be given to the beneficiary named in the Will who has been left with the largest portion of the Estate.
What is the role of the Executor?
In general terms, the role of the Executor is to administer the Estate of the deceased.
More specifically, an Executor may need to deal with the following matters:
- Obtaining the death certificate;
- Locating the original Will of the deceased;
- Advising family and friends of the death of the deceased;
- Following up any specific instructions or requests of the deceased;
- Arranging and paying for the funeral (if not otherwise arranged by family members);
- Applying for a grant of probate;
- Compiling a list of all of the deceased’s assets and liabilities (debts) at the time of death;
- Arranging for payment of outstanding debts of the estate;
- Notifying all beneficiaries of the Will;
- Distributing the estate according to the terms of the Will;
- Arranging tax returns for the deceased;
- If required, taking or defending legal action on behalf of the estate;
- Avoiding unnecessary delays;
- Avoiding conflicts of interest with those of the beneficiaries.
What is a Grant of Probate?
The Grant of Probate is a legal document issued by the Supreme Court of Victoria which allows an Executor to administer the Estate of the deceased. This document allows the Executor to carry out the terms of the Will, including collecting and distributing assets, as well as arrange for payment of the debts of the deceased. Except in the case of small Estates, the Executor cannot carry out the terms of the Will without a Grant of Probate.
Who is the ideal Executor?
1. Sensible – the Executor doesn’t have to be a lawyer, but should be someone who you trust to make the right decisions on your behalf.
2. Healthy – the Executor should not have any serious illnesses or suffer from any severe physical or mental impairments that may interfere with them carrying out their duties.
3. Local – the Executor should be accessible, and should not live too far away from the Will maker.
When does the Executor's role commence?
The Executor’s job commences as soon as the deceased has died. However, as stated earlier, the Executor is under no legal obligation to administer the deceased’s Estate until one year after the date of their death.
What if someone wants to make a claim to an estate?
The Executor should refrain from distributing the Estate for at least six months after Probate has been granted. This will safeguard the Executor against any claims against the Estate of the deceased by any potential debtors, beneficiaries or other persons. Potential claims against the Will for family provision, that is, family members or other persons making a claim on the Estate, must be filed within 12 months from the date of death. An Executor who distributes the Estate prior to this six month period can be held personally liable for any debts arising from the early distribution.