A Will’s main purpose is to record what will happen to your estate once you are gone. When making a Will, you will name one or more people in your Will as executor. The executor’s role is to be responsible for the process of carrying out your wishes.
Quite often, Mum or Dad will name their children as the executors of their estate, which means this could be you. Dealing with the death of a loved one is a very stressful time. Whether or not you knew you were the executor beforehand, the death of the Willmaker triggers some extra responsibilities for you as an executor.
Given the potential consequences for you personally in being an executor of an estate, it is a role that needs to be taken seriously, and quite often requires you to put your own grief and emotions to one side whilst you carry out those responsibilities. So, what are they?
Obviously, each estate will be different as it will depend on the terms of the Will, but generally speaking, the most important responsibilities are:
- Arranging the funeral. Legally, it is the executor that is responsible for the deceased’s body including the funeral arrangements. Quite often the funeral arrangements will be made by the family members and will often include the executor, but on those occasions when a dispute arises over the arrangements (and yes, this does happen), it is the executor who has the legal entitlement to decide the funeral arrangements.
- Notifications of death. The executor should take steps to notify appropriate institutions and organisations that the deceased has passed away. This can include banks and financial institutions, the ATO, Centrelink, Councils, any service providers (phone, internet, electricity, etc), insurance companies etc. Each organisation’s internal procedures may be different, but you may be expected to complete some paperwork and provide a copy of the death certificate and/or Will in the case of some organisations.
- Identify and secure the assets of the estate. This is perhaps the most critical step in the administration of the estate. Depending on the nature of the assets in the estate, the executor may need to obtain a grant of probate in relation to the Will. This is a court order that confirms that the Will is valid and that the executor can deal with the assets in accordance with the will. Therefore, it is important that you identify what the assets in the estate are, and take appropriate steps to secure the assets. This may mean taking possession of the asset or ensuring it is adequately insured against any potential loss.
- Paying liabilities, including finalising tax returns. This can take some time and involve a co-ordination between the executor, estate lawyer and the accountant.
- Distribution of the estate. As an executor, you do not own the assets in the estate personally. You are responsible for ensuring the assets are distributed to the beneficiaries in accordance with the terms of the Will.
As an executor, if you breach any of your responsibilities, you may become personally liable to pay to or reimburse the estate for any loss and damage suffered by the estate because of your breach. Therefore, it is important to make sure that you comply with all of your responsibilities as an executor.
Don’t panic if (and more likely when) the time comes where you to act as executor. At Mason Lawyers, we guide you through all the aspects of estate administration (including helping you will all your responsibilities), to make the process as easy as possible no matter how complex the estate may be.