This blog is intended to assist someone who has been appointed as an executor of someone else’s estate. For an overview of deceased estates, see our previous blog Deceased Estates – what do you need to do?
What is an executor?
An executor is the person named in the deceased testator’s Will as the person they want to be in charge of dealing with their estate after their death. Executors are responsible for ensuring the debts of the deceased have been paid and that any remaining assets are distributed in accordance with the deceased’s wishes (i.e. as set out in their Will).
Executors owe fiduciary duties to administer the deceased’s estate. This is taken very seriously by the courts, and executors have in the past been found personally liable to compensate beneficiaries where assets have been improperly distributed. It is therefore important that executors are properly informed and guided when acting on behalf of the estate. Most executors do this with the assistance of a specialised probate lawyer.
Step 1 – Find the Will
After the testator’s death, the first step for executors is to locate a valid Will. This can be a difficult process if it has not been previously discussed with the testator. It is therefore important for you, or someone you know who is making a Will, to have a conversation with your executors about their appointment and where the Will is located.
Step 2 – Apply for a Death Certificate
Executors must also apply for a death certificate confirming the death of the testator. This is necessary when applying for a grant of probate, and is also required to be sighted by most organisations (such as banks and insurance providers). Obtaining a death certificate is therefore crucial to allow your executors to begin dealing with your estate. This is often done with the assistance of the funeral directors.
Step 3 – Apply for the Grant of Probate
Your executors must next apply to the Victorian Supreme Court for the grant of probate. Probate verifies that a Will is valid and can be acted upon. Without probate, the executor does not have authority to administer the estate, meaning they cannot transfer any assets or cash out of the estate to beneficiaries. Executors make an application by fulfilling the process requirements, including advertising on the Supreme Court website and completing the application forms and procedures. This is usually done with the assistance of a probate lawyer.
Step 4 – Distribute the Estate
Once probate has been granted, and the relevant administration timeframes adhered to, the estate can be distributed. Executors must collect and value all of the deceased’s assets and address their liabilities, such as paying off outstanding debts and arranging tax returns. Executors must also obtain access to superannuation and bank accounts, and call in any insurances held by the deceased. This process applies to assets and liabilities both within and outside Victoria. After this process is completed, distributions can be made to beneficiaries in accordance with the instructions under the deceased’s last Will.
Whether you are an executor of a will or are seeking help to plan your own estate, we can assist you to follow the required legal processes. Do not hesitate to contact us on 9890 3321 to arrange an appointment with one of our lawyers.
By Emma Stansfield