Executor: Should I Be One?

If you’re the eldest sibling in the family, or deemed to be the “most responsible”; if you’re seen to be a good friend by someone; or a fine upstanding citizen by others, chances are you will be asked to be an executor of someone’s Will.

Understanding the Role of an Executor

After you’ve enjoyed the warm feeling of being wanted, just pause for a moment and take stock of what it really means to assume this most important role. You need to be aware that when the person dies, you will be required to spend a significant amount of time executing your responsibilities – and these can be onerous.

Duties of an Executor

The actual functions will vary from one situation to another and, to some extent, depend on the surviving family members. However, the legally defined duties of the executor include:

• Arranging the funeral: This involves coordinating with funeral homes, arranging services, and ensuring the deceased’s wishes are respected.
• Determining the assets and liabilities of the estate: This includes identifying all assets such as property, investments, and personal belongings, as well as any debts or liabilities.
• Applying to the court for probate, if required: Probate is the legal process of validating the Will and authorizing the executor to distribute the estate.
• Determining what assets may need to be sold to pay outstanding debts: This may be defined in the Will or by established legal definitions.
• Arranging the sale of all assets which are not to be directly transferred to the beneficiaries: This includes the home, investments, business interests, and personal chattels.
• Lodging tax returns for the estate and the deceased: Ensuring all tax obligations are met is a critical responsibility.
• Paying the debts: Settling any outstanding debts of the deceased.
• Publishing a notice that you intend to distribute the remaining assets to the beneficiaries: This is a legal requirement to inform potential claimants.
• Distributing the remaining assets to the beneficiaries according to the terms of the Will: Ensuring that the wishes of the deceased are carried out accurately.

Challenges and Risks

For all this, you may find yourself in the middle of family disputes and even subject to legal action from a dissatisfied beneficiary or creditor. If placed in this position, the executor needs to be able to manage his or her responsibilities as impartially as possible. The executor can be held personally liable if a beneficiary suffers financial loss as a result of the executor’s actions or inaction, and in some instances, be legally liable for any losses incurred.

Deciding Whether to Accept the Role

If, after considering all of this, you don’t think you can honour the person’s request and fulfil the role appropriately, it might be best to decline the offer. If you’re feeling bad about not accepting, you could suggest that your friend or relative engages a professional executor in the form of a trustee company (or public trustee) or firm of solicitors. This will also guarantee the executor outlives the person making the Will.

Legal Considerations

Be mindful that laws do vary between Australian states and territories. Consider enlisting the assistance of an estate planning solicitor for specialist advice. This ensures that you are fully aware of your responsibilities and the legal implications of being an executor.

Conclusion

Being an executor is a significant responsibility that requires careful consideration. It involves a range of duties, from arranging the funeral to distributing assets, and can be fraught with challenges. If you are asked to be an executor, take the time to understand what is involved and seek professional advice if needed.

Read more about the duties from Legal Aid.