What is an executor?
The executor of a Will is the person, organisation or trust company responsible for making sure the terms of the Will are carried out.
What is the executor legally responsible for?
The executor is responsible for:
- The deceased's body;
- In cases where there is no family who can arrange the funeral, the executor would be required to do this;
- Applying to the High Court for probate;
- All the initial costs before probate is obtained;
- Finding out and locating all the assets and liabilities of the estate;
- Dealing with the banks and lenders regarding any loans, mortgages or other debts where there are payments due before probate;
- Making sure all the assets are protected, i.e. locks, security, insurances (remember insurance is in the name of the deceased, so this all needs to be changed);
- Tax returns;
- Cancelling any automatic payments, e.g. newspapers, subscriptions; and
- Meeting with the family to get as much information as possible in order to find out about al the assets and liabilities.
Who can be an executor?
If the executor is not an organisation, they can be any person who:
- Is over 18;
- Is not bankrupt;
- Has fully mental capacity;
- Is willing to be the executor;
- Is honest; and
- Preferably has some legal or tax experience.
What does an executor do?
- Meets with the family, if any, to get as much information as possible relating to the estate;
- Confirm the Will provided is the last Will;
- Identify specific gifts from the Will. These need to be safely secured and cannot be formally distributed at this early stage;
- Apply for probate;
- Manage the costs of the estate, including mortgage payments until probate is issued (up to 6 weeks);
- Once probate is granted the executor will then be able to formally deal with the necessary people and organisations to close accounts, sell assets, repay debts and expenses;
- Provide regular updates to the beneficiaries of the progress of the estate administration;
- Talk to the beneficiaries about the assets and how they want to deal with them, e.g. what is going to happen with the house?;
- Research current values of estate assets. For a house, a registered valuation is recommended;
- Identify and locate all beneficiaries;
- Where estate funds are held pending distribution, these should be held in a bank account in the name of the estate;
- Once probate is received, pay all the estate debts from the money available;
- Pay all tax obligations;
- Prepare financial accounts for all transactions in the estate and give these to the beneficiaries; and,
- Distribute the assets.
Since claims can be made on an estate up to 12 months from probate, it is common for an executor not to distribute the assets until 6 months have expired. An executor can distribute after 6 months if no claim or notice of intention of a claim is received. If the executor distributes before 6 months and a claim or notice to claim is received, the executor may be personally liable.
What if there are overseas assets?
If there are overseas assets, depending on their value, the nature of them and where they are located, an Exemplification of Probate may be required. This is a duplicate of the probate to be resealed in the court of that country and can be time consuming and expensive.