Executors in NSW

An Executor is the person appointed in a Will to ensure that the wishes of the will maker (called the testator) are carried out in accordance with their Will.

An Executor’s duties include:

  • making funeral arrangements;
  • identifying any debts including any tax payable;
  • identifying the deceased’s assets and ensuring their security;
  • applying for a grant of Probate with the NSW Supreme Court (the Court)(if required);
  • paying all debts and tax from the assets; and
  • distributing the balance of the assets in accordance with the deceased’s Will.
The process in carrying out the Executor role.

The deceased’s assets are frozen until Probate has been granted. An Executor can access the deceased’s bank account only to pay funeral expenses and court fees relating to the grant of Probate.

A grant of Probate is generally required unless the estate is small (less than say $15,000.00), or if the deceased held all their assets jointly with another person(s). Jointly held assets (e.g. real estate held as a joint tenant) are not transferred in accordance with the deceased’s Will: they become the surviving joint owner’s asset.

If a grant of Probate is required, the Executor must identify the deceased’s assets and liabilities. An application for Probate, setting out the deceased’s assets and liabilities and their values and other evidence relating to the death and the Will, is prepared and filed with the Court. If the Court is satisfied that the application relates to the deceased’s last Will, and is supported by evidence, it will generally grant Probate.

After Probate is granted, the Executor(s) can administer the estate, obtaining monies from financial institutions, selling or transferring property, paying debts and tax and distributing the proceeds of the estate in accordance with the Will.

Before distributing the deceased’s assets, the Executor should also:

  • obtain expert accounting advice as to the estate’s tax liabilities, including Capital Gains Tax. The Executor could be personally liable for any unpaid tax.
  • post a notice on the Court website that he or she is going to distribute the assets of the estate and giving anyone who believes they have a claim on the estate one month to make the claim. The law protects an Executor who posts such a notice from claims by creditors and other claimants of whom the Executor is unaware at the time of distribution. However, claims may be made against the beneficiaries (including the Executor if he or she is also a beneficiary) of the estate.
The Executor’s role

Managing and administering an estate includes carrying out the deceased person’s wishes set out in the Will.

The Executor’s role is one of significant responsibility which should be approached with care and honesty. The Executor must manage and protect estate assets, ensure all estate liabilities are paid, and protect the interests of the estate and its beneficiaries.

Refusal to act as executor

An Executor can refuse to accept the position of executor. Ideally they should do so before taking any steps in relation to the administration of the estate.

If the decision to not act as Executor occurs after Probate is granted, the Executor must obtain the Court’s consent to cease acting.

Trustee duties

Executors also take on the role of Trustee of an estate. Trustees’ duties include to:

  • act personally;
  • act unanimously where there are multiple trustees;
  • act in good faith;
  • consider how distributions should be made and to who and when;
  • not be dictated to by others such as beneficiaries; and
  • avoid fettering any discretion they have.
Duty to act personally

Executors have a duty to act personally in the administration of an estate. If there are multiple Executors, they should consult with each other.

Executors can delegate some of the actions and tasks for an estate to others. Section 53 of the Trustee Act 1925 (NSW) (the Act) directs that trustees may employ appropriate ‘agents’ to carry out part of the administration of the estate, who can be paid from the estate.

Executors often employ solicitors to obtain a Grant of Probate and carry out the administration of the estate. However, delegation of tasks does not absolve an Executor of their responsibilities. The appointment of an Executor or trustee is one of trust and personal confidence by the will-maker.

Duty to not fetter discretion

If there is more than one Executor, decisions must be reached jointly, by majority or unanimously, as specified in the Will. All co-executors must co-sign and jointly consent to administrative decisions.

Payment

Sometimes an Executor can be paid for carrying out the role following an application to the Court. However, if an Executor receives a benefit under the Will, this is usually presumed to be payment.

If you have been appointed as an executor in a Will, contact us now for advice and assistance in administering the estate.

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