Alternatively, one of the beneficiaries can apply to the court to become the administrator of the estate (Probate and Administration Act 1898, section 74). These include those associated with the funeral, the testamentary process (probate) and administration (including legal fees). For more information about how to go about this please visit the ATO website or contact an accountant. The Executor is usually responsible for the disposal of the deceased’s body. However, the Will can allow the Executor to delay the distribution of assets. It is the right of all beneficiaries of a deceased estate located in NSW to receive their entitlement under the Will within 12 months of the deceased’s death (plus any interest as prescribed by the Court, if paid outside this 12 month period). Due to the nature of the role, the Executor has strict duties that must be adhered to. The Executor will be fully aware of any outstanding debts as part of the process they go through when applying for a Grant of Probate. The Executor will also need to identify the assets and liabilities listed as part of the Estate. If the deceased has not left their Will in the custody of a professional, or in the care of a family member or friend, locating the Will could be a lengthy process that involves searching through the deceased’s personal possessions. What happens to superannuation when I die? Being named as Executor in a Will can bring with it complicated, difficult and time-consuming duties which often take up to a year to complete. The Executor organises to collect the assets of the deceased, pay any debts and distribute the estate assets to the beneficiaries as set out in the deceased’s Will. We would not hesitate in recommending your company. The executor can appoint the NSW Trustee & Guardian or a private trustee company to take their place. This enables debts and liabilities, such as outstanding tax and administrations costs, to be paid off prior to directing money to beneficiaries. Generally, the Executor must administer the Estate and distribute all assets within 12 months of the deceased’s death. Being an executor may involve: applying for the death certificate from the NSW Registry of Births, Deaths and Marriages It is important to choose an executor who understands the legal, financial and taxation implications and can maintain independence if there are disputes. The executor can be a trusted friend or family member, an appointed professional such as a solicitor, or a trustee company. It is the Executor’s responsibility to preserve the assets listed as part of the Estate from waste. What is Probate NSW? Nominating an executor can a difficult choice but anyone over the age of 18 is legally allowed to be the executor if they have the mental capacity to do so. An executor may take on the role of trustee if there is a trust established by the Will When an executor has completed all of their duties, their role ends. You can choose a friend or relative, or appoint an independent trustee organisation like NSW Trustee & Guardian. This means the Executor must ensure the assets are not wasted due to their own action or inaction. There will be some changes to our opening hours and payment dates during the holidays. Duties of an Executor . When someone dies, an executor is the person appointed by the will to administer the estate. An executor, who is also a beneficiary of an estate, is generally taken to receive their inheritance in lieu of an entitlement to commission. providing am accounting report of all administration activities to the beneficiaries. They were always available with answers which they communicated in language that the non-lawyer could understand. To obtain a ‘Grant of Probate’ from the court the Executor must make an application within 6 months of the deceased’s date of death. Your main role as executor is to represent the person who has passed away and wrap up all of their personal, financial and legal affairs. It is for this reason that Executors seek expert advice from experienced legal practitioners, like Turnbull Hill Lawyers, to ensure this does not occur. Identifyin… Many people see it as a compliment to appoint a relative or close friend as their executor, but finalising your affairs while they’re grieving can be overwhelming and challenging. Some Estates are sizeable and complicated and require the help of a professional legal practitioner to assist the Executor in fulfilling their duties. the debts of the Estate. Locating the deceased’s Will and obtaining a Death Certificate 3. What is your role as an executor? The Duties of an Executor when the deceased estate is located in NSW An Executor is someone who has been appointed by the Willmaker (also known as the Testator) to carry out the directions that have been laid out within the Will and administer the Estate. Avoid putting your executors into conflict by the terms of your will. The charging clause was limited to professional work only. Being an executor of a Will can feel overwhelming for some people, but it doesn’t need to be. These costs must be reasonable. The Executor will need to determine who the beneficiaries are and if they are still alive. Turnbull Hill Lawyers were an amazing team to work with. notifying government agencies, utilities, financial institutions etc. For example, it would be unreasonable for the Executor to plan an extravagant funeral when the Estate is small. This person is known as the executor and their role is to carry out the instructions in your Will. In general, the role of the executor is to defend the interests of the beneficiaries under the provisions of the Will. The Executor can be an individual person or a trustee company. Executors are also required to locate the original Will and confirm the Will’s beneficiaries. The executor doesn't want to act. Section 19 ‘Executor to be admitted a witness’ of the Wills Act 1936 (SA) states: No person is on account of being an executor of a will incompetent to be admitted a witness to … I have nothing but the highest regard and gratitude for Adrian Corbould who was my acting lawyer in contesting my fathers will, I could not have asked for better! The Court has an inherent power to order the removal of executor who is 'unfit to act in such office'. An executor is the person who handles a deceased person's estate, making sure all property is distributed according to the decedent's wishes and that all debts are paid. When you make your Will, you need to appoint a person or organisation to administer your estate. It is important to note that any assets that the deceased held jointly with another party or person do not form part of the Estate and cannot be called in as part of the Estate. What is an executor? Renunciation. For example, it is ill-advised to give your executor a right of residence to live in a property where the executor must make decisions about whether they are complying with any conditions. Probate is the legal process that proves the validity of a Will. While it is not necessary, the Executor should also seek agreement from the deceased’s family before finalising any funeral arrangements. Once probate has been granted, the Executor has the authority to deal with the assets and liabilities of the deceased’s Estate (that were listed in number 2). distributing the estate assets and funds (this includes first ensuring all liabilities and expenses have been accounted for, paying legacies, transferring specific gifts, establishing any ongoing trusts and transferring or paying any remaining assets to the residuary beneficiaries). This is particularly important when religious beliefs need to be respected. For example, if the Estate includes real estate that needs to be sold, the real estate must be sold for a price that is regarded as fair market value. Until probate has been granted the deceased’s assets are completely frozen. Following the grant of probate from the Court, in NSW the Supreme Court, it is beneficial that an executor opens a bank account in the name of the deceased estate and deposit their assets into it. Request an appointment to make or update your Will to appoint us as your executor. 2. These rules put the executor in a position of great responsibility, as he is the only defendant of the will. Our website uses an automatic service to translate our content into different languages. While these jointly held assets do not form part of the Estate, they should still be identified by the Executor and disclosed to the court during the application for probate. The court usually will not award you any … Another responsibility that falls under the duties of an Executor is the prosecution of any claims the Executor may have against third parties, provided that the entitlement to pursue these claims did not cease upon death. The executor should also have regard to any wishes of the deceased as set out in the Will, although in NSW the deceased cannot dictate what is to happen to their body, as ultimately this is a responsibility of the executor. 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