What is an executor of a Will?

The executor of a will is the person who ensures that the wishes of the deceased are carried out. That person may be a solicitor, a family member, or someone trusted by the testator. They may be nominated by the testator in their will or appointed by the court. The executor bears the weight of obligation, both in terms of the will and under the law. They have to make sure that their posthumous affairs are seen to, and their property and possessions distributed accordingly. As a fiduciary, the executor is required by law to act in the best interests of the estate’s beneficiaries. In Australia, an executor must be over the age of 18 and of sound mind. Otherwise, anyone can be the executor of a will in Australia.

What are the executor’s responsibilities?

First and foremost, the executor must locate and then take possession of the will, or a copy of the will. Logically, they will already know its whereabouts, but they must first collect it. Then, they have to guarantee that all the arrangements for the funeral are made according to the testator’s wishes. Not only must they see that all the correct preparations are made, but later, they must account for the cost. The costs will then be deducted from the estate. Next, they apply to the court for probate. Once probate is granted, the executor itemises the assets of the estate, including outstanding debts.

All of this information is added up in an official statement, detailing all of the above. This includes money in bank accounts, trusts, superannuation, shares, and wherever capital may reside. The assets will also include all valuable property such as real estate, cars, antiques, and furniture. Thereafter, when all the assets are accounted for, the executor settles the estate’s debts by paying creditors, bills, and rates. Most importantly, they must settle all taxation matters with the Australian Tax Office (ATO). Finally, the beneficiaries are contacted and granted their entitlements.

1. Applying for probate

Before officially filing for probate, the executor advertises their intention to apply for probate on their state’s online court registry. It must be published 14 days before the application is lodged with the court. This allows any potential disputants or creditors to file a claim before probate passes. It also gives others a chance to challenge the validity of the will. The executor submits the papers to the court after 14 days and is assigned a case number. The documents must be properly submitted, either in person or by mail. The death certificate and will are the most crucial papers. The application is then checked by the Registrar. If any problems arise with the application, the Registrar will contact you. The grant of probate is usually posted within eight weeks of its receipt. Many online agencies now provide this service for a fee.

2. Preserving the assets of the estate

The executor is responsible for preserving the estate’s assets after collecting them all. This translates to properly storing valuables, investing surplus funds, and taking care of whatever is the nature of the assets. If real estate is involved, for instance, then the executor must ensure the property is secured and insured. The executor may be personally liable for any damage the property incurs. Among other possible duties is clearing the deceased’s estate. The premises must be cleaned and tidy, ready for either the beneficiaries to move in, or to sell them. This may mean organising for the removal of excess rubbish, for which services are available. In severe situations, the executor may seek the services of a forensic cleaning firm that specialises in crime scenes and trauma clean-up.

3. Gathering the estate assets and paying liabilities

When an executor is gathering an estate’s assets, they may open a bank account, particularly for that reason. This is a reasonable method for organising the returned cash and paying the estate’s debts. Items and shares that are not to be conveyed to a beneficiary are sold and the proceeds are deposited into the account. Likewise, the beneficiaries gain an advantage from the interest accrued while the money awaits distribution. An executor who is collecting assets from organisations must provide satisfactory proof of their status with a certified copy of the grant of probate and a personal ID. Debtors are contacted and bills, etc., are gathered so that, come probate and the collection of the assets, they can be paid. This can range from paying basic bills to covering outstanding income tax.

4. Defending the estate during legal challenges

If someone challenges the legality of a will, the executor must deal with it on behalf of the estate. Typically, they will retain the services of a probate lawyer for this reason. The rules governing the defence of a deceased estate differ from state to state. In exceptional circumstances, a beneficiary in, say, a family dispute may be denied by the court if a sufficient reason exists. By the same token, the testator may have disentitled an applicant on grounds that can be legally challenged. Some of these are marrying without a parent’s consent, alcoholism, or adopting a different faith. Other areas of a will involving the exclusion of a family member are unclear and can be tested by the courts. In such cases, the applicant will likely have to prove mitigating factors on the testator’s part, like dementia.

5. Managing income tax affairs

Issues concerning a deceased person’s income tax must be addressed during probate. This entails notifying the Australian Tax Office and submitting a death notification. This informs the ATO about the death as well as the fact that you are now the executor of their estate. You have the authority to manage the deceased person’s tax affairs if you have a grant of probate or letters of administration. Tax matters encompass areas of business, whether the business continues or is wound up with the death of the testator.

For the last tax period, a final business activity statement (BAS) may be required. If a company’s assets are sold, extra taxes, such as goods and services tax (GST) and capital gains tax (CGT), may be levied. The executor might also need to check whether or not they need to file a final income tax return on behalf of the deceased. For instance, if the estate is deriving income from the estate, rent, for instance, or trust tax returns, may also need a separate lodging.

6. Distributing the assets

Once the estate has taken care of all the business, debts, and taxes, the assets are distributed to the beneficiaries. These items may include cars, clothing, jewellery, trusts and furniture. The aforesaid valuables might constitute part of the whole estate, specific endowments, or sundry belongings of the departed. Real estate is another matter. Significant property, such as houses, home units, and business premises, is distributed finally, either to a sole-named recipient or to be divided among various beneficiaries. The latter most likely involves the sale of the house, home unit, business or residence. The process of probate is concluded after the distribution of the assets and when all beneficiaries have acknowledged the receipt of their entitlement by signing the proper document.

Conclusion

Probate is a serious responsibility and one which a person can decline. Onerous duties are undertaken and care must be given to ensure the process is executed properly, lest it involves legal action down the road. As an executor, one is responsible not only for the accounting of assets but for their maintenance and security as well. It is a painstaking chore, the greatest reward of which is the tribute the task represents from the executor to the deceased. However, as daunting as the process seems, there is always the option of purchasing peace of mind via the services of agencies that specialise in the specific matters outlined in the sections above. To that end, if you are an executor tasked with the sale of property, you may wish to contact Perfect Agent. We can help you find the best real estate agent for your needs.