Our 20 Most Frequently Asked Questions about being the Executor named in a persons Will

It's not long until you'll meet someone who has been named as the Executor in a family members Will Document or a friends Estate Planning. But what does that actually entail?

As modern life, love and business (and the inevitable passing or us all) becomes more complicated, having a plan in place ahead of time, just in case, makes the life of those we inevitably leave behind less difficult and helps use sleep better knowing we have down our best to protect and provide for thoses we love. Getting your own estate planning sorted today is truly an act of love and provision.

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So you've been named the Executor in a persons Will Document - What do you need to know now?

An Executor is a person nominated to take legal responsibility for managing the affairs of a deceased person who has made a Will Document. The duties of the Executor only come into place after the Will maker has passes away.

  • Executors can delegate some of the actions and responsibilities to others, for example, funeral directors, lawyers, accountants and real estate agents, but the Executor will be ultimately responsible for the actions of those people. 
  • For smaller estates that don't have that level of complexity, an Executor may choose to do all the work themselves.

For bigger and complex estates, many Executors simply take the Will Document to a lawyer to have them do the majority of the work required; from collecting information, calculating debts and calling in outstanding bills, locating significant assets and listed beneficiaries etc.

Then, the Executor simply signs off the work later on when completed.

Who is an Executor?

An Executor is usually a person previously nominated in a persons Will Document, to oversee the implementation of the deceased legally expressed wishes, to manage the will maker’s estate and carry out the will maker’s wishes set out in the Will after they have died.

Is the Executor paid?

The Executor’s role is often described as a trustee or fiduciary role. In most circumstances, where the Executor is a person known to the will maker, they will not receive any financial benefit or payment for taking on the role.

An Executor is entitled to be reimbursed by the estate for any amounts they have paid on behalf of the estate, provided they were appropriate amounts. Eg. obtaining a real estate valuation on an estate property asset.

What is an Estate?

An estate asset is all of the property and liabilities belonging to a person, remaining after their death.

The most common examples of estate assets are:

  • Property owned jointly with another person (not as tenants in common). In this instance, the will maker’s share of the property passes to the other owner automatically upon the death of the will maker.
  • Any superannuation and life insurance proceeds, paid directly from the fund to a nominated super/life insurance beneficiary (and not to the estate)
  • Undistributed assets of a family trust.

There are some assets that do not form part of the will maker’s estate after their death. These are called ‘non-estate assets’ and have their own separate means of changing ownership outside the Will Document and usually outside the duties of the Executor. eg: Savings & Investment Bonds.

What is the role of an Executor?

The role of the Executor is to carry out the wishes of the Will maker as specified in the Will.

This is a position of great trust and must be carried out with care and honesty and also includes a level of personal responsibility for their actions.

  • The Executor’s role is often referred to as a trustee or fiduciary role. If, for example, the Executor wanted to buy something from the estate, he or she would need to ensure there was an appropriate valuation of the item and also obtain consent from all of the adult beneficiaries.
  • The Executor is responsible for managing and protecting all of the assets of the estate until they are distributed to the beneficiaries. (This can require insuring property and vehicles while the estate is being wound up). They’re also responsible for ensuring all of the liabilities of the estate are paid where appropriate.
  • The Executor must act in the best interests of the estate and all of the beneficiaries and cannot act in his or her own interests if they are not the same as those of the estate and the beneficiaries.
  • Where there is more than one Executor specified in the will Document, they should consult with each other and agree on a course of action.
  • Executors should keep complete records of how the estate has been managed and distributed, and should provide a summary of the financial transactions for the estate to the beneficiaries.

Who is a Beneficiary?

A named beneficiary is any person or entity (e.g. it could be an organisation like a charity) that has been listed in a Will Document to receive a gift or benefit from a person’s estate.

Managing Conflict between beneficiaries

If a conflict arises between beneficiaries, an Executor cannot take sides with one or more beneficiaries.

Communicating regularly with the beneficiaries about what is happening with the estate is a good way of minimising misunderstandings and conflict.

While an Executor has to act in the interests of the beneficiaries, an Executor doesn't have to obtain their approval for everything they do. They can dispose of a property if they believe that this is the right cause of action. However, they need to be careful not to act for personal gain and document their actions and reasons.

This is especially so as the family and friends of the Will maker, may often spread across the country, are coming to terms with their loss and will need clear communication about what is happening.

Pro Tip: It is possible for some assets to be distributed other than as set out in the Will. (eg: The family pet may be given to an interested beneficiary when its distribution was not specifically provided for in the Will Document. The Executor must inform all beneficiaries and obtain consent from all adult beneficiaries to the action, preferably in writing (and preferably after each beneficiary has had the opportunity to seek independent legal advice).

Does an Executor have take on this responsibility?

An Executor can refuse to accept the position of Executor, but this should preferably be done before probate is granted. If the Executor seeks to step down from that position after probate is granted, they must obtain the consent of the Supreme Court.

Who arranges the funeral?

The Executor is responsible for making the funeral arrangements if the will maker has not already made those arrangements ahead of time. The Executor should follow any directions left by the Will maker as to the funeral arrangements, but is not bound to do so.

Pro Tip: Any funeral requests should be left in a separate document called, ‘Letter of Wishes to the Executor’ separate and distinct from the Will Document, outlining any wishes or prepaid funeral plans that may have been made in regards to a potential funeral.

Things to consider include:

  • whether the body is to be buried or cremated
  • if the body is to be buried, where
  • if the body is to be cremated, whether the ashes are to be scattered or retained
  • the nature and format of the funeral service (if any); and
  • who they should notify about the service.

If the Executor is not an immediate family member, then the Executor should consult with the family about the funeral arrangements.

The reasonable cost of the funeral is an expense of the estate, but the Executor should be careful not to incur expenses beyond the available funds in the estate.

What happens to the bodily remains?

The Executor may be asked whether organs can be donated. This usually occurs where the Will maker has registered with the organ donation register or there is a request by the hospital or the next of kin.

The decision is usually left to the next of kin.

Should there be a reading of the Will?

Usually only in the movies. Typically, the beneficiaries are notified of their interest by the Executor or the firm of solicitors appointed by the Executor.

In different Australian States and Territories, various categories of people may be legally entitled to request a copy of a Will.

These may include:

  • any person named or referred to in the Will, whether as beneficiary or not
  • any person named or referred to in any earlier Will as a beneficiary
  • any spouse of the will maker at the date of the will makers death
  • any domestic partner of the will maker
  • any parent, guardian or children of the will maker
    any person who would be entitled to a share of the estate if the will maker had
  • died without leaving a will
  • any parent or guardian of a minor referred to in the Will or who would be entitled to a share
  • of the estate of the will maker if the will maker had died without leaving a will; and
  • any creditor or other person who has a claim at law or in equity against the estate of the will maker and who produces evidence of that claim

Once probate is granted by the courts, a copy of a Will Document becomes public and may be obtained from the Supreme Court.

What should the beneficiaries be told?

There is no legal obligation for beneficiaries to be told that they are beneficiaries before the gifts in the Will are given to them.

An Executor may instruct their lawyers to notify the beneficiaries of their entitlement and where necessary, communicate with beneficiaries as to the progress of the administration of the estate. Alternatively, they may choose to do so themselves.

What should be done with the assets and liabilities of the estate?

As Executor, you are responsible for the safekeeping of the assets of the estate.

You should:

  • make an itemised list of all of the assets as soon as possible, including a description of their condition and where they are stored (if necessary). Using a video camera may be a good method of recording what household items exist
  • digital assets should also be considered, such as photographs and documents stored digitally
  • ensure that property such as houses, buildings, boats and cars have current and adequate insurance. Consider whether the insurer needs to be notified because of any change ie. the house is vacant or the vehicle is housed elsewhere
  • ensure that items of dollar or sentimental value such as jewellery, photographs, paintings etc are adequately secured
  • consider whether the locks to houses and buildings need to be changed
  • consider obtaining valuations of personal chattels (where appropriate).
  • Consideration should be given to what to do with all household items.

What do you do with the 'stuff'?

Executors have an obligation to ensure that assets are not wasted and do not diminish in value.

For smaller low value items, some items may be given to the beneficiaries in part satisfaction of their interest in the estate, some may be sold to second-hand dealers or given to charities or otherwise disposed of. Care must be taken in making these choices and keep detailed records listing reasons and decisions made.

Many Executors consult with the family of the deceased before making these decisions.

  • If money is collected from the sale of assets and is not to be distributed straight away, it needs to be invested
  • If real property is to be held for some time, consideration should be given to whether it should be rented and confirm its insured against fire and flood
  • In some instances, professional valuations will be needed if beneficiaries are given items
  • Alternatively, the value may be agreed upon by the Executors and beneficiaries

The Executor should also ensure that all liabilities of the estate are accounted for. This may include the usual household accounts such as telephone accounts and credit card bills but will also include other liabilities, such as income tax.

Do all Wills need to have a Grant of Probate?

No - Probate is only required in Australia when asset holders and other institutions request that executors 'show evidence of their legal authority to deal with' the deceased person's estate.  A Grant of Probate (from the courts) provides this proof, if required. Major asset holders (like Banks and Investment companies) have clearly defined policies regarding when Probate is required.

The laws vary from state to state, so it's important to check the rules in your state but in most cases, if the estate is worth less than $100,000, probate may not be necessary.

How do I prove I have the authority to administer a low-value estate?

When working with a low-value estate, it’s usually necessary to establish that;

  • you are the person administering the estate - by providing a Certified copy of the Will document, and
  • a Death Certificate to transfer low-value assets.

What is Probate and how do I apply for it?

Probate is a document given by a Supreme Court that confirms;

  • the validity of the Will, and
  • the appointment of the Executor to look after the estate of the deceased will maker

An application for probate requires the preparation and filing of various documents with the Court, including:

  • a statement of assets and liabilities with appropriate valuations - this often takes some time to prepare as information needs to be obtained from the banks, companies in which the will maker held shares, superannuation funds (etc.). It can take up to six weeks to receive a response from all of these institutions
  • formal valuations of real estate or antique items may be needed
  • a certified copy of the death certificate
  • the original Will Document
  • an affidavit from the Executor setting out background information about the deceased, the Will and financial position of the estate
  • an affidavit is signed in the presence of an authorised witness and has the same importance as evidence given under oath in court, and
  • an affidavit including a copy of the advertisement required and a statement about what searches have been made to ascertain the existence of any prior grants of probate or administration in relation to the will maker’s estate

How much does an estate have to be worth to go to probate in Australia?

The threshold varies from state to state, so it's important to check the rules in your state. In most cases, if the estate is worth less than $100,000, probate may not be necessary.

Probate is necessary to give the Executor the right to deal with certain assets such as real estate and money in bank accounts.

  • Real estate cannot be transferred unless probate is obtained (except to a surviving joint proprietor).
  • Probate is only required in Australia when asset holders and other institutions request an Executor show evidence of their legal authority to deal with the deceased person's estate.
  • A Grant of Probate provides this proof.

Probate is generally required in NSW if person dies owning: land or a house; accounts with any particular bank in excess of approximately $50,000 (though this can vary from bank to bank); substantial shareholdings exceeding $15,000 of value

Pro Tip: Most banks will not allow the Executor to deal with money in the will maker’s bank account(s) where the balance is above a certain amount unless probate has been granted (although banks will usually allow access to funds for the payment of the funeral account).

There are some estates that are small and do not contain real estate (for example, because it is transferred to a surviving joint proprietor) and in these cases, probate may not be required.

What if there is no Will document?

If there is no Will the next of kin of the deceased usually has to apply to the Supreme Court for a document called 'Letters of Administration'.

This document is the court’s formal approval for someone to administer the estate of the deceased, effectively acting in the same role as an Executor, but called an Administrator. Approval is usually granted in favour of a family member or another person who has a substantial interest in the estate.

Is there tax to be paid?

You may need to lodge a final tax return for the deceased person for the income year in which they died. This is called a 'date of death' tax return. You can learn more about that teh the ATO here.

The Executor is responsible for lodging any outstanding income tax returns on behalf of the will maker where necessary. The last tax return should also contain a statement of assets and liabilities of the will maker at the date of his or her death.

  • The estate is also subject to income tax if it earns income, such as rent on real estate or interest on investments, and a tax return may need to be lodged on behalf of the estate. The estate should not be fully distributed until all income tax liabilities are known and accounted for.

If property is given to beneficiaries in accordance with the Will, for most transfers there will be no capital gains tax or stamp duty payable by the estate or beneficiaries at the time.

However, capital gains tax may be payable by the beneficiaries when they dispose of the property at a later date.

  • If assets are sold by the estate, then capital gains tax may be charged to the estate.
  • There will be no capital gains tax on the sale of the will maker’s main residence if it is sold and the sale settles within 2 years of the date of his or her death.

How long do estates take to finalise?

The time it takes to finalise an estate depends on what must be done and how long it takes for each step to be completed. Often third parties such as banks and companies in which the estate has shares are required to supply information and this can take some time to receive

Pro Tip: It is prudent for all of the estate’s liabilities to be paid before the estate is finalised.

What if the estate liabilities exceed the estate assets?

If there are more liabilities in the estate than assets, then the estate is insolvent. In this situation, the estate should be declared bankrupt and the remaining assets used by the trustee in bankruptcy to pay out the liabilities. The Executor and beneficiaries would not be liable for the shortfall provided that they had not already taken any assets from the estate.

Where can I get my own professional Will Document from?

For clients of Sapience Financial who have used our Estate Planning and Documenting Services to draft a legal will document and naming executors, Executors have free legal advice available when needed from our drafting lawyers as part of our service.

To help minimise the problems of not having a properly legally drafted Will, we have the full solution for you so start up a conversation today.


author pic drew browneDrew Browne is a specialty Financial Risk Advisor working with Small Business Owners & their Families, Dual Income Professional Couples, and diverse families. He's an award-winning writer, speaker, financial adviser and business strategy mentor. His business Sapience Financial Group is committed to using business solutions for good in the community. In 2015 he was certified as a B Corp., and in 2017 was recognised in the inaugural Australian National Businesses of Tomorrow Awards. Today he advises Small Business Owners and their families, on how to protect themselves, from their businesses.  He writes for successful Small Business Owners and Industry publications. You can read his Modern Small Business Leadership Blog here. You can connect with him on LinkedIn Any information provided is general advice only and we have not considered your personal circumstances. Before making any decision on the basis of this advice you should consider if the advice is appropriate for you based on your particular circumstance.

Written by Human Not made by AI sapience financial

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