Making a Will – What is an Executor and what do they have to do?

When drafting your Will you should take care in appointing your executor.   An executor is the person that you have nominated to take care of your estate after you pass away.

They have a number of duties and responsibilities in order to finalise all of your personal, financial and legal affairs.   These are provided for under the Succession Act 1981 (Qld), as well as common law fiduciary duties.   The executor’s primary duty is to act in the best interests of the estate at all times.   This includes avoiding any conflicts of interests between their duties as an executor and their own personal interests.

Key responsibilities include:-

1. Organising the funeral and burial or cremation for the deceased
2. Locating the will and advising the beneficiaries of their entitlements
3. Applying for probate

Probate is a process of application to the Court that ensures that the Will is a valid Will.   For more information regarding probate read our article.

4. Preserving the estates assets

This means ensuring that the assets of the estate are insured and that any remaining funds in the deceased’s name are accruing interest.

5. Gathering the estates assets and identifying the liabilities

In order to properly distribute the assets in accordance with the Will it is important that proper care is given to locating all the estate’s assets.   This will include tracking down all the estates liabilities.

6. Paying the estates liabilities

After the estate’s assets have been located and the liabilities identified, it is the responsibility of the executor to ensure that the estate’s liabilities are paid prior to distributing any of the assets to the beneficiaries.

7. Finalising the deceased personal tax affairs

The executor has the responsibility to ensure that the deceased tax affairs with the ATO are concluded.  This will include lodging a final tax return.

8. Defending the estate during any legal proceedings

The executor must step in and defend any legal proceedings against the estate.  This could occur if the Will is contested by a beneficiary or where a caveat is placed on the estate.

9. Distributing the assets to beneficiaries

The final duty of the executor is to distribute all the assets to the beneficiaries as directed under the Will.

Who should I appoint as Executor?

Although you may appoint anyone over the age of 18 years, with capacity to act as an executor, it is important to take care when appointing an executor given their serious responsibilities in the administration of the estate.  This is especially as the appointment of an inappropriate executor could result in significant cost and delays.

There is often a misconception that you cannot appoint an executor who is also a beneficiary of the estate.  This is incorrect, however, it may be prudent to consider how the appointment may agree with the other beneficiaries to avoid conflict in the distribution of the estate.

You are not limited to appointing one person as executor, however, be aware that appointing more than one may cause tension between the executors as they will need to come to a joint decision on several issues.  Therefore, if you are thinking of appointing more than one executor you should ensure that you are confident that they will be able to work together effectively in the administration of your estate.

An important consideration in whether to appoint someone an executor of your will is whether they have the time and skills to administer it properly.  The roles and responsibilities of an executor can be onerous and time consuming, as such you need to ensure that your executor is going to have enough time and organisation skills to be able to administer the estate properly.  Moreover, someone who is familiar with undertaking the kind of work required, such as familiarity with administrative processes and good financial management, would be an ideal executor.

Once you have made the decision on who you want to appoint as your executor/s you may wish to talk it through with them and ensure that they are willing to perform the role.  They can decline to act as an executor down the track, so it is good practice to name a second in the event of this happening.  Otherwise, it will be necessary to apply to have a court-appointed administrator to administer the estate.

If you do not have a Will, need to update your Will or have any questions regarding preparing a Will then please contact our office to arrange a convenient time to meet with one of our experienced solicitors.