The appointment of an executor is only effective following the death of the will maker. Once he or she has died, then if you are appointed by the will as executor, you should decide very quickly whether you wish to accept the position. You are under no legal obligation to do so. If you don’t want to act as an executor, the Kit contains information about how to “renounce probate”. The testator may have discussed the appointment with you, but frequently, the executor is unaware of the appointment until death.
You should read all this material before you decide whether you wish to accept the appointment. Most people accept. In many estates, the tasks are not particularly difficult as long as you exercise common sense and take legal and accounting advice when reasonably required.
In the course of administering an estate, an executor will usually have to:
In some cases, the executor will also be involved in making funeral arrangements.
If there is more than 1 executor named in the will, the forms need to be completed by all executors. It may be convenient to have only one executor proceed with the application, in which case the other executor(s) may renounce their duties (see Renunciation of Probate below). Another is that the application may be made in one executor’s name only. In this circumstance, the summons should include a clause that leave is to be reserved to the other named executors to obtain a Grant of Probate. The probate registry will also require proof that the remaining executors have been put on notice of the application and reserve the right to make an application at a later date.
In the event that the other executor has died, cannot be found, or is unable or unwilling to renounce probate, an application can be made to the Supreme Court by the remaining executor or a beneficiary. In these situations, you can speak to a solicitor before making your application. This is to ensure that the application is within the scope of this Kit. If Letters of Administration will be required, you will need to have a solicitor prepare your application.
In order to perform your duties as an executor, you will need to have the original will. If it was not in the possession of the deceased, you must obtain it, by right, from the person or solicitor who holds it.
The executor(s) can arrange a meeting with the family of the deceased and beneficiaries named in the will and explain the will if they are not straightforward. This is not a requirement. Alternatively, it may be more practical to send a copy to anyone with a legitimate interest. If you do not do so, it may create suspicion and criticism. When this happens, a legal action against you can happen.
These are at the discretion of the executor. Usually, the arrangements are simply carried out by agreement between the family. It should also be under any express wishes of the deceased person.
If there are any difficulties, then you should be aware:
If you contract with the funeral director, make sure the cost will not exceed the value of the assets of the deceased. Otherwise, you will be liable to pay the balance.
Yes, contracts for the sale of land may be issued by the executor and exchanged before probate is granted. Provided that the contract is conditional on the issue of the Grant and the registration of the title transfer documentation at the Land Titles Office in your State. Caution is recommended. This is because there may be unexpected delays in the Grant which will delay the settlement of the sale.
If any problem arises regarding the administration or distribution of the estate or the meaning of the will, then you can apply to the Court for its assistance. The Court will give appropriate directions and thus protect you from any liability. Usually, costs of proceedings will be ordered out of the estate. If a problem arises, a solicitor may advise you. If you need to get the help of the Court legal assistance is probably essential.
You are responsible for any loss which the estate incurs from your unauthorized acts.
The most difficult situation is where the deceased operated a business at the date of his death. Legal and other advice is considered essential in this case. Generally, you should ensure that any debts you incur or may become liable to pay do not in total exceed the value of the assets of the estate.
If you see any problem arising at any time before you accept the office or during the administration of an estate, we recommend you seek legal advice.
There is no right to receive payment for your work as an executor unless they will provide otherwise, although any reasonable expenses you incur will come out of the estate. It is possible for you to apply to the Court for commission. You should seek legal advice if you intend to do this.
The executor is generally not permitted to purchase any of the assets.
A purchase is possible if:-
If you do not want to accept the office as executor, you can. However, you should not take any steps which might indicate you have accepted the office (e.g. arranging funeral, collecting assets or dealing with creditors). You should “renounce” your right to be executor. This is done by signing a ‘Renunciation of Probate’ form, which is then filed at the Court at the same time the application for Probate is made. The form should be signed by you before any adult witness and then should be filed at the Equity Registry of the Supreme Court with the will, or both documents should be given to any other named executor or the sole beneficiary named in the will.
The executor is required to furnish tax returns on behalf of the estate. Usually, this means that you will have to file a return for the deceased up to the date of their death and later file a return for the estate for each financial year until the estate is administered.
You should also be aware that there may be capital gains tax considerations when completing the tax return and also in distributing the assets to beneficiaries. You should seek professional advice in this regard if there are any assets such as real estate or shares which attract capital gains tax.
Although it is not usually required of private applicants, in some cases you will be required to lodge accounts in a special format with the Court. It is therefore very important that you keep accurate and concise records of all financial transactions in respect of an estate of which you are executor and that those records are permanently retained – or at least retained until an informed release is given by all beneficiaries.
These may include amounts owing to the Tax Office, a funeral director, chemist, doctors, newsagent, electricity, gas, and so on. Mortgages, hire purchases or other longer term debts might not need to be paid immediately. If you do not want to do so, discuss options with the lender.
The Title of real estate held in joint name (Joint Tenants) automatically passes to the other person (for example, the spouse of the deceased) upon death of the first person. You do not need a Probate Parchment for these assets. You should contact the Land Titles Office or Dept of Lands in your state to get the appropriate forms.
Please see AussieLegal’s conveyancing services to assist with the sale of the property or transferring the title to the names of the beneficiaries, or call 1300 728 200 to speak to one of our consultants:
https://aussielegal.com.au/fixed-price-property-conveyancing/
These may include bank accounts, company share registers or debentures. Each of these institutions will provide the instructions that they require you to follow. Each is a little different and usually includes a copy of the Death Certificate. For assets held in joint names (Joint Tenants) a Probate Parchment is not required. For assets held solely in the name of the deceased, or as Tenants in Common, a Probate Parchment is usually required.
Yes, you can make a ‘personal application’ rather than have a law firm act on your behalf. You can save many thousands of dollars and be in control of the process. AussieLegal has assisted thousands of people with successful personal applications for probate in all States and Territories in Australia.
Click on the following link or call 1300 728 200 to speak to one of our consultants:
https://aussielegal.com.au/product/probate-application-australia/
AussieLegal offers a number of legal kits and paralegal services that are specifically designed to help family members make a personal application and save thousands in legal fees.
Reach out on 1300 728 200 to discuss your situation with one of our consultants
