Understanding the Role of an Executor of a Will in NSW
What is an executor?
The executor is a person who is named as executor in a will and who, upon the death of the will-maker, has the right to administer and distribute the deceased’s estate in accordance with the deceased’s will.
While some activities can be attended to before probate, the person appointed as executor will not obtain formal power to act as the executor of an estate until they obtain a grant of probate, which, in NSW, is a document issued by the Supreme Court. In many cases, an executor will not be able to transfer or deal with estate assets unless they have obtained probate.
Who can act in the role of an executor?
Where a person named as executor is not willing or able to act as an executor, they do not have to and can renounce the role.
Where a named executor is a minor (under 18 years of age), they are required to wait until they reach adulthood before accepting (or renouncing) the role.
Most people choose an executor who is a close family member or friend and who is younger than they are and therefore likely to outlive them.
What responsibilities does the executor of a will have?
After the death of the testator, the executor is responsible for:
- locating and interpreting the will.
- organising the funeral and arranging for the burial or cremation of the deceased.
- identifying, calling in, and preserving the assets of the estate.
- applying to the Court and obtaining a grant of probate.
- lodging tax returns with the Australian Taxation Office.
- identifying and paying the debts and liabilities.
- defending the estate from claims.
- transferring assets to the beneficiaries.
- once all debts have been paid, distributing the estate to the beneficiaries (or trusts) according to the instructions in the will.
- ensuring the assets are distributed in accordance with the wishes of the deceased.
- manage the estate.
- finalising administration.
What rights does the executor of a will have?
An executor has the right to:
- accept the role if willing and able.
- administer a deceased estate.
- prepare for and apply for a grant of probate.
- engage the services of a probate lawyer.
- be reimbursed from the estate for reasonable costs incurred in the administration of the estate.
- transfer assets into their name before distributing them to the beneficiaries or trusts.
- distribute the remaining assets according to the terms of the will after debts are paid.
- communicate with third parties and the government on behalf of the estate.
- refuse to act as an executor if they are unable or unwilling.
Can an executor also be a beneficiary?
Whether an executor can also be a beneficiary (including a sole beneficiary or main beneficiary) will depend on the terms of the will.
In some cases, where the executor is also a beneficiary, the will may contain provisions that confirm that the beneficiary is entitled to their entitlement as a beneficiary regardless of whether they act as executor and that any gift to them as beneficiary is not contingent on them acting as executor.
Can you defer executor duties to someone else if you don’t want to be an executor?
If probate has not yet been granted, a named executor who is not willing or able to act in the role and who has not intermeddled with the estate or its assets may renounce their role at any time. If the named executor has intermeddled with the estate or its assets, they may require Court approval before renouncing the role.
Once probate has been granted and an executor has been appointed, an executor may only renounce the role with Court approval.
Common reasons why a named executor may renounce the role include an inability to commit the required time, estrangement or conflict prior to the testator’s death, or if the named executor is too ill or elderly to undertake the role.
What happens if no executor is named in the will?
If none of the executors named in a will are willing and able to act as executors, another person (usually the next of kin, or a beneficiary with the largest interest in the estate) may apply for a Grant of Administration referred to as ‘Letters of Administration with the Will Annexed’. If granted, the Court will appoint someone to administer the estate in accordance with the terms of the will. This person is called an ‘administrator’.
Challenging Wills and Protecting The Testator’s Intentions
In addition to being responsible for administering the estate, the executor is also the person responsible for defending claims against the estate.
An executor may find themselves defending a claim where a person challenges the validity of the will on grounds including undue influence, suspicious circumstances, or a lack of testamentary capacity or where a person contests the will by bringing a ‘family provision claim’. In each case, the claimant will often have the same objective: to increase the share of the estate to which they are entitled.
Once notified of a potential claim, the executor should seek legal advice and seek the views of those beneficiaries who may be impacted by the claim.
Benefits of Appointing the Public Trustee as Your Executor
Where a person does not know anyone suitable to act in the role of executor, they can appoint a professional executor, such as a trustee company or the Public Trustee, to administer the estate instead.
The Public Trustee is an alternative solution in New South Wales, Queensland, Victoria, and other States and Territories and if appointed executor, will carry out the directions of the will and be responsible for making sure the deceased person’s wishes are carried out after they die.
Frequently Asked Questions
Yes. A will-maker may appoint one or more people as executor, to be responsible for administering their estate.
An executor is usually a close and trusted family member or friend.
Where a person does not know anyone suitable to act in the role of executor, they can appoint the Public Trustee (or other professional executor or trustee company) to be executor of their estate. The Public Trustee is an alternative solution in New South Wales, Queensland, Victoria, and other States and Territories and will carry out the directions of the will and be responsible for making sure the deceased person’s wishes are carried out after they die.
The time it takes to administer an estate depends on the size, nature, and location of the assets and the nature of any claims against the estate. For example, the administration of a simple estate may take 9-12 months from the date of death. The size of the estate is a key factor, and larger or more complex estates may take longer to administer.
An executor must comply with the laws and regulations that apply to the administration of an estate.
Complaints in relation to the conduct of executors are common, with the most number of complaints relating to poor communication from the executor, a lack of transparency regarding the estate’s assets and liabilities, and delays in the administration of the estate, including the delay of the final payment of the remaining assets.
Where a beneficiary has concerns regarding the administration of an estate, they should seek advice from a wills and estate lawyer. The lawyer may raise the concerns with the executor, and if, after receiving the complaint, the executor’s conduct continues to cause concern, the lawyer may advise the beneficiary of further options.
If the executor has breached the terms of the will or a legislative provision and the breach is serious, the beneficiary may choose to bring an application to remove the executor. Where the Court finds the executor has breached their duties or is no longer suitable to act in the role of executor due to other reasons, the Court may remove the executor, and if other executors remain, it may allow the remaining executors to continue to administer the estate, or if there are no executors who remain, it may appoint an administrator to administer the estate. Removal proceedings of this nature can be costly, and a beneficiary who loses their claim may be held liable to pay the executor’s costs in defending the claim.
Communication from an executor plays an important role, and an executor should always communicate within a reasonable timeframe and in sufficient detail.
Whether or not an executor can sell property without the beneficiaries agreement depends on the terms of the will.
Where the will directs the sale of the property, either expressly or impliedly, the executor can sell a property without the beneficiaries agreement. Similarly, where a property needs to be sold to pay for the estate’s debts, the executor may generally do so without the consent of the beneficiaries.
Where a property is subject to a specific bequest—where the property has been gifted to a specific beneficiary and is not required to be sold to meet debts—the executor will usually be prevented from selling the property without the consent of the beneficiary.
Where an executor can’t locate a beneficiary, they should engage a company that specialises in locating beneficiaries. If the searches are still unsuccessful, the executor may need to make an application to the Court for judicial advice or a further Court order as to how to deal with the unlocatable beneficiary’s share.
Whether or not an executor is entitled to payment, and the amount of payment, depends on the terms of the will.
The laws and regulations that apply to an executor are complex. One of the responsibilities of an executor is to act in the best interests of the estate and beneficiaries. This is referred to as a ‘fiduciary duty’. An executor may be held personally liable for any losses suffered by the beneficiaries caused by the maladministration of an estate, which includes but is not limited, to a breach of the fiduciary duty or breach of legislative provision.
Need Help Navigating Your Role as an Executor? Contact Our Legal Team Today!
If you have been named as an executor, one of the executors, or legal personal representative of an estate and are seeking advice or assistance from a solicitor whether to take on the role, call Empower Wills & Estate Lawyers on 1300 414 844. We can help you with the process and ensure you fulfil all legal responsibilities and reduce the risk of personal liability.
We can also assist you with planning your estate through our tailored estate planning services.
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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.