A good question.  One in fact that many executors never ask themselves - but should.  The first thing to note is that acting as an executor is not compulsory.  However, if an executor is intending to decline to act, this decision should be made and communicated to the relevant individuals as soon as possible.

An executor’s job is to carry out the terms of the deceased’s Will.  This may involve a range of duties, starting with making funeral arrangements if the will maker has not already dealt with them while they were alive.

An executor is responsible for safeguarding the assets of the will maker’s estate.  Broadly, an executor will usually be required to identify all assets and liabilities, verify and pay all valid liabilities of the deceased, and then distribute the net value of the estate according to the terms of the Will.

An executor of an estate is held to a very high standard of behaviour; they act in a fiduciary capacity, and must act in the best interests of the estate and all of the beneficiaries.  If there is a conflict between their personal interests and those of the estate and the beneficiaries, the latter interests must prevail.

Executors can delegate some of their actions and responsibilities to others.  They can retain various third parties to assist (e.g. lawyers, accountants, real estate agents, etc.) but, in the end, ‘the buck stops’ with them personally.

In financial terms, an executor is entitled to be repaid by the estate for any amounts they have paid on behalf of the estate provided these amounts are appropriate.  Common items for reimbursement include such items as funeral expenses and legal fees.  Receipts should be kept for any amounts paid.

Generally, an executor does not receive any financial payment for carrying out their duties.  However, payment may be made:

  1. Where the will maker indicates in the Will that the executor is to be paid for their ‘time and trouble’.
  2. If all of the beneficiaries are able to agree on an amount the executor should receive from the estate for acting as executor.
  3. Where, upon application being made, the Supreme Court orders that the executor is entitled to be paid.

Executorship can be difficult.  It may involve navigating delicate family issues between beneficiaries.  There may be actions of a ‘rogue’ donee of a power of attorney to deal with, who acted on behalf of the deceased before death.  It could be that there is a challenge to the deceased’s Will, in which case the executor becomes a legal ‘defender’ of the terms of the Will, and could in fact become a defendant to a legal action brought under the legislation governing challenges to Wills.  There are many other situations in which an executor could find themselves in a delicate and difficult situation, acting for the estate on an unpaid basis.

Many executors are the sole (or major) beneficiary of the deceased’s estate, and undertake the task to ensure that the job is correctly completed. Most executors do not ever think about declining to act; perhaps more should.

This is intended as general information only. For more information book an appointment with us today or contact our Family Law team at Tonkin Legal Group on (03) 9435 9044.