The primary objective of laws pertaining to Will is to ensure that the properties of the deceased are distributed as per the intention and wish of the deceased, to avoid risk of fraud and in order to minimise chances of mismanagement. Under a Will, an executor is appointed by the maker of the Will who looks after the estate of the deceased or carries out the directions in the Will.

The distribution of the deceased estate is supervised by both legislative and Common Law authorities and the intention of the deceased is valued the most while distributing the property.

Executors are usually nominated in the Will of the deceased. Where there is no valid Will or the person nominated to be the executor is unable to discharge the duties, the Supreme Court can appoint an administrator to deal with the deceased estate.

The beneficiaries have no right or interest in the deceased estate until the executor or the administrator distributes and disposes off the assets and debts of the deceased. The beneficiaries only have the right to sue the executor and the administrator if they fail to administer the estate diligently and correctly.

Executors may be asked to prove that they are authorised to administer the Will before the assets can be released and this can be proved with the grant of Probate. To obtain a Probate, the executor named in the Will must apply to the respective Probate Office of the Supreme Court and if the application is approved, it proves the authentication of the Will and that the executor is the person authorised to administer the deceased estate.

In situations, where administrators are appointed, they need to obtain a Letters of Administration before the estate of the deceased is distributed.

An executor is thus a person, who stands in the shoes of the deceased and administers the estate. The executor’s role varies with the type of estate. However, the role generally includes the following:

Collecting and gathering the real and personal estates to administer the estate properly as per the relevant law;

Notifying all interested parties including beneficiaries of the Will;

Providing a sealed exhibit containing full list of the inventory held within the estate to the Supreme Court;

Preparing and submitting the total costs involved in administration of the estate to the Supreme Court;

Providing the relevant Grant of Probate and Letters of Administration to the Supreme Court;

Finalising income tax returns of the deceased and of his/her estate; and

Taking necessary steps to distribute the estate as per the Will.

Following are the responsibilities of an executor:

Organising funeral and/or burial or cremation of the deceased;

Locating the original Will and confirming the same to the beneficiaries;

Keeping the assets safe, such as securing properties and valuables, paying for insurances;

Lodging taxation returns on behalf of the deceased and his/her estate; and

Selling properties and distributing assets as per the Will.

The executor of an estate must comply with the various laws and rules governing the administration of the deceased estates.

The responsibilities of an executor are challenging and comprehensive. Some estates are complicated wherein the executor might need to consult a legal practitioner to assist him in finalising the estate.

The executor is also responsible for preserving assets, managing trusts and making investments on behalf of beneficiaries below 18 years of age.

If you have any queries, feel free to speak to our team of legal experts at Owen Hodge Lawyers.

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General & Enduring Power of Attorney
Intestacy Rule
Legal Capacity and Wills
Living Wills and Mutual Wills
Not-For-Profit Organisations: Wills & Bequests
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Revoking a Will
Special Disability Trusts – What Are they and How Can they Assist you
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Advanced Care Directives
Dementia and the Law
Does A Person Have Capacity To Make A Will?
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Family Provision Act Claims and Estates Disputes
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Guardianship Tribunal Appeals
General & Enduring Guardianship
General & Enduring Power of Attorney
Granny Flats
How To Write A Will
Notary Public
Power of Attorney
Reviewing Your Trust Deed
Retirement Village & Aged Care Advice
Self Managed Super Funds and Estate Law
Superannuation Complaints Tribunal
Special Disability Trusts
Special Disability Trusts – extension to CGT relief
Substitute decision-making
The Succession Act
Transition to Aged Care
Wills & Estate Planning

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