Executors Duties – Administrators Responsibilities – Probate Solicitor Australia

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Our probate solicitors offer initial legal advice on wills at no cost including advice on executors duties. If you need guidance pertaining to a will or matters surrounding administration of a will, make contact by using our helpline today. One of our probate solicitors will contact you with the answers to your questions. The initial consultation is always free, confidential, and there’s no obligation.

Executor of a Will

The executor is a person appointed in a will that the testator chose to manage the estate's assets corresponding to the testator's wishes upon their death. An executor obtains their powers and authority through the will itself, that authority entitles the executor to take steps to preserve and protect the estate's assets immediately following the testator's death. There is no justifiable legal necessity for an executor to await the issuance of a Grant of Probate. That grant only confirms the authority provided exclusively by a will. However, the executors duties and responsibility require a personal liability to each of the beneficiaries; coincidentally an executor could also be one of the beneficiaries. Dependent upon the estate's size an executor's responsibilities according to the will's conditions could be significantly onerous to require most lay executors to instruct a specialist probate solicitor to conduct the majority of outstanding tasks on the executor's behalf, the cost of which can legally be charged to the estate.

Grant of Probate & Letters of Administration

An executor, if there was a will or a potential administrator if there wasn’t may apply, with the required documentation, to the court for a grant of representation. The executor, who could be a banking officer, accountant or solicitor but might be a trusted relative, friend or business associate of the deceased, needs the grant of representation to allocate the assets of the deceased as directed by the will or by statute in cases where there was no valid will. Normally, especially in the case of a complex estate, an executor or administrator who believes they are not fully qualified to handle probate matters will instruct a solicitor to deal with most of the legal issues. This makes sense in a lot of ways, especially when the executor is too busy to handle all of his duties or to avoid or reduce complaints and legal actions potentially taken by beneficiaries who may not be happy with the manner in which the executor or administrator divided assets.

Executor's Duties – Administrators Responsibilities

Matters of probate can be complex; particularly when making application for a grant of representation, and this process may in due course require a full assessment of the deceased’s assets and finances. The first of the executors’ duties is to secure all assets and thereafter assess liabilities and debts and them make appraisal of assets, which may include real property and bank accounts. Next the executor must make an application for the Grant of representation submitting where required at a later date, an account that details all those liabilities and assets. An original will must be submitted with an application for a grant of probate.

If there is no will or if the will has not appointed an executor, it will be necessary to apply to the court for a Grant of Letters of Administration to appoint administrators whose responsibilities mirror the duty of an executor.

Wherein the executor's responsibilities to beneficiaries of the estate demands a good deal of time and effort, particularly in cases where high valuations of assets exist, it is critical for executors to regard those duties respectfully, as that responsibility also entails personal liability to the beneficiaries. For those executors without sufficient knowledge or experience dealing with those duties might require guidance from a professional and experienced probate solicitor. Executors can be personally held liable when beneficiaries incur unnecessary financial losses due to mismanagement of the estate's assets. Furthermore, an executor is not financially compensated either for their effort or time spent, with the possible exception of professionally appointed executors.

The principal executors duties charged to the representaive are:

  • The executor is obligated to urgently ensure that the assets belonging to the estate are properly secured and whenever possible an executor should take possession of the assets and deposit cash immediately in a client or trustee account.
  • An executor is obligated to procure the necessary insurance to protect assets that may be at risk to cover their value.
  • The executor is obligated to assemble and protect the estate's assets in entirety from whichever place those are located.
  • An executor must make payment of all the estate liabilities, which may include the expense of the funeral, whilst giving priority to certain debts including taxes.
  • The executor is obligated to make redistribution of the residual estate assets under the will's provisions. This may require the executor to liquidate certain assets through sale.
  • All matters must be dealt with expeditiously. Legal action could be the result when a beneficiary considers that an executor failed to manage their inheritance promptly or properly.

Asset Realisation and Distribution

Upon issue of the Grant of Probate or Letters of Administration, the appointed executor or administrator can legally make distribution of the estate’s assets according to the deceased’s wishes as proclaimed in the will or in accordance with statute if there is no will. This process might include selling property, liquidating shares, and requesting or withdrawing bank account balances. Once all the assets are accounted for and realised and payment of all debts are made, including any remaining taxes, the executor/administrator is obliged to make distribution of the residual portion of the estate to its beneficiaries. Executors are responsible to ensure full payment of debts and taxes, as well as bearing responsibility to all beneficiaries.

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