What should I do if I am asked to be an executor?
In the event that a loved one passes away you may discover that you have been named as executor of their will. That’s because when a person writes a will, they must choose an executor who is responsible for ensuring their final wishes are carried out after they die.
If you find yourself in this situation, you need to understand what your obligations are as quickly as possible; as the executor’s role begins immediately after the testator has died.
What does an executor do?
The executor is in charge of making sure the deceased person’s debts are paid and that their assets and possessions go where they wanted them to in accordance with their final wishes.
Most people name just one or two executors in their will, but technically they can name as many executors as they like.
If you are named, you can decline to take on the role and a different person named in the will can assume executor duties or, if no one is named, a court can appoint someone.
However, if you’ve been asked to be an executor and do decide to take on the role, here are the main responsibilities you must discharge.
Usually the most pressing duty of the executor is to arrange a funeral, as well as burial or cremation, for the deceased person. These arrangements are typically set out in the will and it is the executor’s responsibility to carry them out in line with the deceased’s instructions.
Make an inventory of property
After the funeral, the first thing you should do is make an inventory of property, which is a list of everything the deceased owned, and any payments or assets they were entitled to.
This list commonly includes assets like the deceased’s home, car, furniture, jewellery, insurance policies, superannuation and any shares or other investments.
Apply for probate
The next step is applying for probate. This where you get the court’s official stamp of approval that the will is valid and that you’re entitled to carry out duties as an executor.
To get a grant of probate you must first publish your intention to do so with the NSW Supreme Court, and then 14 days later you can apply by lodging forms with the court.
Administer the estate
Once probate has been granted by the court, the executor has the authority to deal with the assets and liabilities of the deceased’s estate as outlined in the will.
At this point, the executor must carry out a range of important duties. These may include prosecuting outstanding claims the deceased may have had against third parties, paying the deceased’s outstanding debts, lodging an income tax return on the behalf of the deceased, and defending the deceased’s estate from those who wish to make claims against it.
Distribute the estate
Lastly, the executor is in charge of distributing the deceased’s money and possessions away in line with the wishes of the deceased person as set out in their will.
Ideally, the will names who each of the assets should go to. These people are referred to as beneficiaries. If the will does not provide directions, the rules of intestacy will apply. Intestacy typically means someone who dies without leaving a will, but it also relates to those who failed to prepare a will properly.
Being an executor can be complex so it’s a good idea, if you have any questions, to contact a solicitor who can provide expert advice about this important role.