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I have been appointed as an executor in a Will, what do I do now?
The executor is appointed in the Will and is responsible for administering the estate as per the instructions in the Will.
Your first job is to locate the original Will and arrange the funeral. The following are some of the basic tasks that the executor typically performs:
- Apply for a grant of probate
- Identify and notify the beneficiaries, including anyone interstate or overseas
- Secure assets
- Pay outstanding bills, arrange asset valuations
- Defend the estate against litigation
- Lodge tax returns (if applicable)
- Set up trusts (if requested in the Will) and administer them
What is Probate?
Probate is a critical legal step needed before a person’s estate can be administered and distributed to the beneficiaries. It is a document issued by the court certifying the Will is valid. It also confirms the appointment of an Executor.
When should you apply for Probate?
We recommend that Probate or Letters of Administration be obtained as soon as possible. This helps eliminate the possibility of fraud. For example, bank accounts may be able to be accessed illegally and funds withdrawn before the accounts have been frozen.
Types of Representation
It is officially called a grant of representation, of which there are two types: Probate and Letters of Administration.
Some small estates or those with no real estate or superannuation might not require a grant of representation.
Why is Probate needed?
A deceased person cannot hold bank accounts, shares, real property, cash, superannuation or furniture. They can’t receive income or pension payments. Probate starts the process of winding up all their affairs.
Probate makes the Will legal
The court requires proof that the executor appointed in the will is alive, willing and competent to undertake the tasks involved. It determines the document is the last Will made by the deceased. It also verifies that there are no objections to the validity of the will.
Why is Probate important?
Without Probate an executor does not have the authority to administer the estate and would not be able to transfer estate assets to beneficiaries.
What if there is no Will?
When a person dies without a Will, there is no executor appointed to administer the estate. In these cases an application for a grant of representation known as Letters of Administration will need to be made.
What is Letters of Administration?
Letters of Administration is the court’s approval for someone to administer the estate of a person who dies without a Will. This is usually made by the next of kin. In some cases, if the named executor of a Will is no longer alive, competent, or willing to accept the responsibilities, the court may appoint someone else to administer the estate. This is called ‘Letters of Administration with the Will annexed.
What issues may arise when applying for Probate?
When you apply for Probate, there are a number of issues you need to be aware of:
The deceased person’s Will may be contested on the grounds that they didn’t have the capacity to make the Will, or they were under undue influence at the time of making the Will.
If you still have questions and need more information, contact us now to speak with one of our Lawyers to discuss your options.
I am a beneficiary of a deceased estate
Finding out that you are a beneficiary of an estate often comes at a time when you are grieving the loss of a loved one. It may be a difficult time to think about the physical belongings and assets of the deceased.
However, it does help to have an understanding of the estate administration process.
What is a beneficiary?
A beneficiary is any person or entity such as a charity that receives a gift or benefit from a deceased person’s estate.
What is an ‘estate’?
An estate is all of the money and property owned by a person.
Who is an executor?
An executor is the person or trustee (like State Trustees) who is responsible for administering the estate as per the instructions in the Will.
Being an executor often means having to make some difficult legal decisions. It helps to have some experience in finance, business, managing conflict and law.
What is the role of the executor?
An executor is the person who is appointed to carry out the wishes in a Will and is personally responsible for managing the deceased estate.
Some of the key responsibilities of an Executor are:
- Locate the original Will
- Arrange and pay for the funeral
- Arrange the death certificate
- Provide death notifications to the ATO, Centrelink, banks etc.
- Apply for a Grant of Probate
- Lodge tax returns for the deceased person and their estate
- Liaise with utility services
- Identify the guardian of children (if applicable)
- Protect the assets of the estate
- Be prepared to mediate and resolve disputes between beneficiaries
Things you might need to know as a beneficiary
- As a beneficiary you are entitled to receive a copy of the Will upon request.
- There is no legal obligation for beneficiaries to be told they are beneficiaries before the estate is distributed.
- Beneficiaries need to understand that Executors have the legal responsibility for the estate.
- All bank accounts and assets of the estate freeze when the person dies. The executor needs to protect the estate and assets from the date of death.
- Beneficiaries need to seek their own legal advice if they believe they haven’t been adequately provided for by the deceased.
- Estate administration can take between 9 – 12 months for simple estates and several years for more complicated estates.