If you have been named an executor in a will, the deceased wanted you to administer his or her estate, perhaps with another person.
There can be any number of executors named in a will, although one or two is usually considered sufficient.
In general terms, an executor's duty is to take charge of the deceased's assets and property, see that the debts and taxes are paid and finally to distribute the assets to the beneficiaries named in the will.
You begin by finding out the assets of the deceased. The list could include a home, car, money, a bank or building society accounts, furniture, household appliances, jewellery, shares and other investments insurance policies, superannuation and holiday pay from work. If assets are not being sold but passed to beneficiaries, they may have to be valued to be fair to all beneficiaries.
Banks and building societies have varying rules which allow access to the deceased's funds without a grant of probate if the estate is very small.
Enquiry should be made of the financial institution concerned to ascertain at what level it will insist on a grant of probate before the executor can deal with the funds.
Once probate has been granted, the executor must collect the deceased's assets and pay any debts or taxes including income tax the deceased owed. In view of possible liability for capital gains tax it is important to find out the date and cost of acquisition of the deceased's assets.
Funeral expenses are to be paid first and there is a particular order in which any other debts must be paid. After funeral expenses are paid, the executor is entitled to claim any expenses relating to the administration of the estate before other debts are paid.
When all assets have been identified and, if necessary, sold to raise cash, and all debts have been paid, the remainder of the estate can be distributed to the beneficiaries. Where appropriate we will be published in the Sydney Morning Herald a special notice requiring anybody with a claim against the estate to provide particulars of the claim within one month.
Where appropriate and instructed by you, I will prepare a distribution statement for the beneficiaries. This may be given to them when they receive their share of the estate showing what the assets were, how much money resulted from any sale of assets they raised and what expenses and debts were paid from the proceeds.
When a person dies without a will, the law applies the order of Intestacy to determine who are the beneficiaries of the estate. We can give you advice about these laws if necessary.
As there is no will there will be no executor. In such situations, the major beneficiary (or one of them with the consent of the others) can apply to the Probate Division of the Supreme Court for Letters of Administration. This is similar to a Grant of Probate but must be supported by more evidence as to who is entitled to the estate.
You are entitled to apply to the Supreme Court for a commission for you work as executor. But if you are also named as a beneficiary in the will the amount you receive will be presumed to be payment for your efforts and you will not be successful with a commission claim. If your efforts have not been very great, the Court may refuse to give you any commission. It is not common to apply for commission.
If you do not want to be an executor (prior to dealing with assets of the estate) you can renounce the executorship by signing a form called a 'renunciation'. We can then file it with the Probate Registry of the Supreme Court.
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