Talking about death, funerals and Wills is never easy, particularly when it's with those close to you, but making the right legal preparations gives the family certainty. This includes selecting the right executor — the person who’ll manage the deceased’s estate.
If you have been asked to be an executor, or are considering who to nominate in your own will, we’ve answered some frequently asked questions about the role. A well-chosen executor, acting according to an up-to-date, legally binding Will, should reduce the likelihood of any disputes and even legal challenges from those left behind.
Who can be the executor of a Will?
Anyone over the age of 18 is legally allowed to be the executor, if they have the mental capacity to do so. Often people choose their partner, a relative or a close friend of the family. Others opt for a lawyer or accountant to take care of it — picking a neutral, professional party should minimise the risk of arguments.
Can an executor also be a beneficiary?
Yes, an executor of a Will can also be a beneficiary — someone who is entitled to some part of the deceased’s estate. Typically, if the executor is also a beneficiary, the other beneficiaries may be extra diligent in ensuring the executor conducts their role correctly.
What information does an executor need?
Executors must ascertain information on the assets and liabilities of the estate, obtain taxation advice, financial advice and the addresses and contact details of all beneficiaries. When it comes to preferences around funeral arrangements or sentimental possessions, the executor also addresses these issues. If you know you are an executor before the Will-maker passes, it’s advisable to speak to the Will-maker about their wishes and ensure instructions around these are clear.
Can the executor of a Will access bank accounts?
Dealing with the financial assets of the deceased is a key responsibility for the executor. Executors generally can only access the deceased’s bank accounts once probate has been granted by the Court.
Responsibilities and duties of an executor
It is the executor’s responsibility to gather the assets of the deceased and use them to pay any outstanding debts and distribute the remainder of the assets (after removing the cost of administrative expenses) to whoever has been chosen as a beneficiary. These duties are not to be taken lightly as the executor can be legally responsible if things are done incorrectly.
The process is quite involved and can require anything from organising the funeral to validating the Will and representing the estate in any legal claims. It also necessitates securing the deceased’s home and property so that it is safe and insured during the transfer period. Being an executor can be time-consuming and at times emotional while dealing with beneficiaries.
During the administration of an estate, it is not uncommon for an executor to have to pay for some expenses out of their own pocket as funds are not yet available. Because of this, we advise executors keep a thorough record of any expenses incurred so as to claim these back from the estate.
Does an executor have to show accounting to beneficiaries?
Beneficiaries have a right to information regarding how the deceased estate is handled depending on their entitlements under the Will.
Beneficiaries who are entitled to a share of the balance of the estate, known as the residue, should be kept informed by the executor of the full accounting of the estate.
Beneficiaries who are set to receive only specific gifts or money under the Will are not typically entitled to the full accounting.
How long does an executor have to distribute the Will?
If an executor hasn’t distributed cash bequests within 12 months from the date of death, then they may need to pay interest to the beneficiaries. However, executors cannot distribute before six months from the date of death in case someone contests the Will. If they do, the executor can be legally responsible for personally reimbursing the estate.
Do I have to accept appointment as an executor?
Not everyone appointed as an executor would like to accept the role and they have no obligation to do so. If you accept an appointment and later change your mind, the role will pass to the next nominated person in the Will. If there is no one, then there is a list of people who have priority to become administrators of the Will.
Does the executor get paid for the work they do?
In Queensland, there is no automatic right to payment for the work performed by the executor unless the Will specifies. Having said that, it is appropriate for the executor to engage professional people such as accountants, financial planners and solicitors to assist — these services will be paid for out of the balance of the estate.
If an executor wants to be remunerated, the Court must authorise the payment to an executor for their services. There is no set amount and the extent of payment is related to the size of the estate and the pains and trouble incurred by the executor in their administration of the estate. If all beneficiaries were to agree to the executor being paid, a private agreement could be entered into —this is rare in our experience.
Does the executor of a Will have the final say?
Executors don’t have absolute authority over a Will — eligible parties can legally challenge, or ‘contest’, a Will. The executor will defend any challenges to the estate.
If you are considering whether to contest a Will, contact us for legal advice from one of our expert Wills & Estate lawyers as soon as possible — strict time limits apply to Will disputes.
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