When a Will-maker (a testator) appoints someone to act as an executor of their estate, it is an act of faith and an honour for the appointee. But being an executor can be time-consuming and challenging.

Choosing an executor can be difficult

A testator should carefully consider their choice of executor (also called their personal representative) as not the role does not suit everyone. An executor’s primary responsibility is to finalise the testator‘s personal, financial and legal affairs. Their duties vary depending on the circumstances and the size of the estate but usually include:

• Collecting the estate assets and paying debts;
• Applying for probate;
• Defending the estate during legal proceedings;
• Protecting the deceased’s assets;
• Distributing the assets of the estate; and
• Managing the deceased’s taxation affairs.

The testator usually chooses their personal representative from close family members, such as a spouse, sibling, or adult child. The role of executor should not be taken lightly. A suitable executor will have good communication skills to enable them to liaise with beneficiaries and be capable of undertaking administrative tasks. They may also need to be able to handle volatile reactions from those family members who resent the terms of the Will.

In some cases, the testator’s family situation is so volatile that it is unwise to appoint a volunteer executor to the role. In other cases, family and friends do not include anyone suitable or willing to act as executor. In such cases, an independent professional with skills required to manage disagreements between beneficiaries may be appointed as executor.

Is being an executor difficult?

Being an executor involves numerous duties and responsibilities. An “easy” executorship does not exist, with some estate administrations being more complex than others. A volunteer executor in charge of a loved one’s estate will have to manage administrative tasks, often while grieving for their own loss. Settling an estate can take six months to years if there are legal challenges or complex assets to sell.

One of an executor’s duties is to defend the estate against legal challenges and contests. An executor may have to defend the estate in a complex legal case where the validity or terms of the Will are contested.

Fiduciary duty

An executor has a fundamental fiduciary duty (a legal obligation to act honestly and in the interests of the estate’s beneficiaries). Mismanagement of the executor’s fiduciary duty can cause the beneficiaries financial loss for which the executor may be held personally liable.

Removal and renunciation of executor

It is much easier to renounce the appointment before starting than it is to give up the role later.

An executor who finds it too difficult to manage the estate administration can apply to the Supreme Court of NSW for someone to take over the duties. The court can appoint an administrator to replace a resigning executor. Alternatively, the Probate and Administration Act 1898 allows the executor to ask the NSW Trustee and Guardian to administer the estate in their place.

If there is evidence that the executor is failing to act in the interests of the estate, is unable to cope with the role of executor and is unable to discharge their duties faithfully and in the beneficiaries’ best interests, the court can order an executor’s involuntary removal.

Some non-professional executors apply to the court for remuneration. The executor is entitled to be paid a “just and reasonable” amount for their “pains and trouble”. To be eligible to be paid commission, upon judicial request the executor must give the court the estate’s financial accounts. The court typically decides the rate of commission based on the complexity of the Will and estate, the amount of work involved, the difficulty of the tasks the executor undertook, and the executor’s diligence.

Here to Help

Being an executor can be difficult. If you have questions about administering a deceased estate or have experienced difficulties as an executor, contact us now for free no-obligation initial telephone advice about tackling the role of executor.