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What Does an Executor of a Will Do

14th February 2022

What is an executor of a Will? An executor is a person who has been nominated by Will to finalise a person’s personal, financial, and legal affairs after their death. This includes managing and distributing the assets of the estate.  

Named executors are not legally required to act if they do not wish to do so. This means that when you are preparing your Will, it is important that you consider whether a person would be willing to act on your behalf before naming them as your executor. It is also important you nominate back-up executors, in case your first-named executor cannot or decides not to act or for some reason may not be able to continue to act during the administration.  You can appoint more than one executor, noting if you do, they must act jointly.  

While the role of executor is generally very similar across Australia, each State and Territory has its own laws which govern the responsibilities and powers of executorship. So, what does an executor of a Will do in Queensland?

What does an executor of a will do?

It is important to consider the important functions which executors are required to complete to fulfil the wishes of the deceased person. In Queensland, executors are required to administer the estate of a deceased person in accordance with the Succession Act 1981 (Qld). With that in mind, there are several duties, rights, and liabilities of which executors should be aware. 

What are the duties of an executor?

1. Apply for probate

It will often be the case that an executor will be required to apply for a Grant of Probate before they can take certain steps in acting on behalf of a deceased person. A Grant of Probate is a formal document issued by the Supreme Court of Queensland which proves a deceased person’s final Will and formally recognizes the executor’s authority to deal with the estate of a deceased person in accordance with that Will.

2. Identify and preserve the assets of the estate 

An executor must take all reasonable steps to identify and maintain the assets of the estate before they are distributed to the beneficiaries named in the Will. The executor must ensure appropriate arrangements are made to ascertain the range of assets held by the deceased person, which may include: money on hand or held by a bank, shares in companies, motor vehicles, real estate, life insurance policies, unpaid wages, personal belongings, and digital assets. The executor must then take all reasonable steps to secure and insure the assets of the estate pending finalisation of the administration.

3. Gather the estate assets and pay debts

Once the assets of an estate have been identified, they will need to be called in. For example, any funds belonging to the deceased person should be paid into a bank account in the name of the estate or a solicitor’s trust account. This is done in order to easily manage and finalise the deceased person’s financial affairs.

Once the funds have been called in, the executor is able (and required) to attend to the payment of any debts the deceased person may have accrued. Subject to the terms of the Will the relevant legislation sets out an order for priority of payment of debts and from what part of the estate the debts can be paid from. It is important to note the debts of the deceased person and the debts of their estate are different and are governed by different rules.

The executor must also ensure any tax returns for the deceased person and the estate have been finalised. To ensure this is properly taken care of, it is advisable for executors to work with a qualified accountant to finalise the deceased person’s tax affairs. This is important as executors may be held personally liable for the payment of outstanding tax liabilities if they do not carry out their duties properly.

4. Uphold and defend the terms of the will

As executors have an obligation to put the interests of the deceased above their own, executorship requires considerable trust and must be taken seriously by those appointed to act on behalf of the deceased person. 

If someone decides to contest the Will (or a person’s executorship) – usually by way of a Family Provision Application or probate caveat – it is the executor’s responsibility to defend the estate and the terms of the Will (depending on the circumstances). In the event any claim or legal proceedings are brought, it is critical you urgently seek legal advice.

5. Distribute the assets of the estate

Once the estate has been finalised, the final role of the executor is to distribute the assets to the beneficiaries named in the Will (this will usually occur at least six months after the date of death). It is important to note that if an executor distributes estate assets before finalising the administration or without making appropriate arrangements for the payment of all future liabilities of the estate, they may be held personally liable for any losses or unpaid debts. If there are special reasons why certain assets should be distributed prior to the estate administration being finalised, you should seek legal advice to ensure you are best protected from liability. 

What are the rights of an executor?

1. The right to commission

As an executor, administering an estate can take a long time and is a potentially exhausting process. An executor may seek payment from the estate (known as commission) for their responsibilities in relation to the administration of the estate.  

After an executor has called in all of the estate assets and paid any debts (including tax), they may apply for an executors commission’. This will need to either be approved by the residuary beneficiaries or by the court. There is no set fee or scale for the calculation of executor’s commission, however recent cases have provided that executors commission can be anywhere from 0.5% - 3% of the estate and is assessed with reference to the size and nature of the estate and the nature and scope of work undertaken by the executor.

2. The right to renounce 

If a person is named as the executor of a Will and is unable to take on the role or decides they don’t want to do so, they are not legally bound to act as executor. In this instance, an alternative named executor or a court-appointed executor will fulfil the responsibility of administering the deceased person’s estate.

What are the potential liabilities of an executor?

1. Liabilities of the deceased person at the date of death

Executors inherit the liabilities of a deceased person’s estate. However, executors are not liable for debts which exceed the estate’s total value.  Although an executor will have a continuing liability in respect of these debts, statutory protection is available to executors who comply with their duties and provide the relevant statutory notices.  

2. Liabilities incurred by the executor during administration

It is common for executors to incur some expenses during an estate administration, such as those involved with applying for probate, funeral expenses, solicitors’ fees, and other estate administration costs. Executors are entitled to be indemnified from the estate in respect of all debts and liabilities properly incurred in the administration of the estate. Funeral and estate administration expenses are given statutory priority.

3. Liabilities of maladministration of the estate

If an executor fails to carry out any of their duties and causes loss or damage to the estate, they will be personally liable for any loss arising from the maladministration.

Strict time limits apply regarding certain claims that may be made either by or against a person’s estate. As such the timing of distributions is critical.  Further complexities may arise where income is being received regarding estate assets or a business if being carried. There are also some circumstances which may give rise to a conflict between an executors role and their positions for example as a beneficiary of the estate or as a superannuation death benefit claimant in certain cases.  

Even for the most astute individuals, an executor’s role can be a difficult, time-consuming and emotional process. You may be able to minimise your stress by seeking legal advice and representation. An experienced lawyer helps to ease the burden of the responsibilities of executorship and helps protect you from potential liability.

If you are deciding who to nominate as executor, or have been nominated as executor in somebody’s Will, and require help or assistance, please contact our specialist Wills & Estates team today and we will be more than happy to discuss your options.

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