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Deceased Estates and provision of Executor Services

This article discusses deceased estates and the provision of executor services.  Estate administration encompasses the processes and duties that are fulfilled in relation to a deceased person’s estate. Estate administration is typically carried out by an executor.

Overview of Executor Responsibilities

Executors are the people that are appointed to manage and administer a deceased person’s estate in accordance with their will.  The role of an executor attracts various rights and responsibilities.

The Responsibilities of Executors in a Deceased Estate

There are various responsibilities which executors typically incur when administering a deceased person’s estate.  An executor may be responsible for the deceased’s funeral arrangements.  This typically includes both the organisation of a funeral service and the burial or cremation of the deceased person.  Executors are responsible for notifying the beneficiaries about their status as beneficiaries of a will or relevant government agencies such as the ATO or banks about the status of the deceased person. Executors are also responsible for the identification and protection of the assets of the deceased.  This may include various forms of property such as real estate, vehicles, cash, art, coin collections and jewellery.  It also includes payments from superannuation and insurance.  Once these assets are identified it is the responsibility of the executor to preserve these assets.

Executors have a responsibility to obtain a grant of probate.  Probate refers to the process of proving the legal validity of the will.  A grant of probate is a document that legally validates a will and authorises the executor/s to administer a person’s estate.  A wills and estate lawyer can provide executors with advice and assistance in relation to applications for grants of probate.

When administering the deceased’s estate, executors are responsible for paying outstanding debts and outstanding liabilities that the deceased has, for instance money owed to the ATO or banks.  The outstanding debts of the estate must be paid before the executor can distribute the estate’s assets to the beneficiaries.

Once these legal responsibilities have been satisfied, the executor is responsible for the distribution of the assets of the estate in accordance with the deceased’s will.

Appointing Executors

Deciding who to appoint as an executor is an important decision.  People often appoint relatives, close friends or lawyers as the executors of their will.  Some important questions to ask when deciding whether to appoint an executor include;

  • Is the person responsible?
  • Is the person trustworthy?
  • Will the person manage your assets in the way you would like them to?
  • Is the person going to outlive you?
  • Should you have multiple executors?

Renouncing Executorship

People who have been appointed as an executor have a right to refuse their position as an executor.  There are formal legal requirements that must be complied with when someone renounces their position as an executor.  The wills and estates lawyers at Brander Smith McKnight are able to assist clients with the process of renouncing their executorship.

How can a lawyer help executors of a Deceased Estate

If you are an executor, you may want to consult a lawyer for the following reasons, to;

  • Explain your rights and responsibilities as an executor
  • Arrange the preparation of documents necessary to obtaining probate
  • Identify the assets of the deceased
  • Provide advice with respect to debts and tax liabilities
  • Explain how the contents of the will intends in relation to how assets are to be distributed

BSM Lawyers can assist with Executors with a Deceased Estate

The wills and estates lawyers at Brander Smith McKnight understand the stressful and complex nature of an executor’s duties. We are committed to providing you with efficient advice and assistance in a compassionate manner.  We always take the time to listen carefully and thoroughly to your needs, we then advise on the most appropriate actions for you.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

FAQs

chevronWhat is probate?

Probate refers to the process of proving the legal validity of a will.  A grant of probate is a document that legally validates a will and authorises its executor/executors to administer a person’s estate.  Brander Smith McKnight’s expert wills and estates lawyers can assist you with obtaining a grant of probate from the Supreme Court.

chevronDo I have to be an executor?

No, if you do not want to be an executor you can renounce your position as an executor by signing a legal document known as a “renunciation”.  You can still renounce your executorship even where you have previously agreed to be one.  The lawyers at BSM can assist you with organising and filing a renunciation of your position as an executor.

chevronShould I make a will?

You should consider having a wills and estates lawyer draft you a will in order to make the process of administering your estate run smoothly following your death. Having your will drafted by a lawyer ensures that your will is legally effective and can be executed properly and efficiently.  A lawyer can also tailor the drafting of a will to reflect your instructions and circumstances. Further, a lawyer can ensure that you fully understand the rights and responsibilities that are created by your will. Having a lawyer draft your will can make the administration of your estate run smoothly and mitigate the chance of disputes arising.  For more information, see our dedicated article on the benefits of a will.

chevronWho should I make my executor?

You should appoint an executor who you think is fit to manage the administration of your estate.
When appointing an executor there are various considerations that you should make. Some things to consider when appointing someone as an executor include:

  • Is the person responsible?
  • Will the person manage your assets in the way you would like them to?
  • Is the person going to outlive you?
  • Should you have multiple executors?
  • A wills and estates lawyer can provide you with advice when considering who you should appoint as an executor in your will.

chevronHow many executors do I need?

You can appoint multiple executors if you wish.  Appointing multiple executors can reduce the stress of fulfilling executor duties and administering an estate. However, how many executors you appoint will depend on your individual circumstances.

chevronWhat is a beneficiary?

Put simply, a beneficiary is the title given to a person who is entitled to certain benefits from a will.  For example, a will may provide that one of its beneficiaries is entitled to the deceased’s house or car.  A will can provide for multiple beneficiaries and divide assets between them in accordance with the will maker’s intentions.  A wills and estates lawyer can inform you of the various rights that are held by beneficiaries.

chevronWill the deceased’s assets be frozen?

Yes, to begin distributing the deceased’s assets probate must first be granted. Our expert wills and estates lawyers can assist you with probate applications.

Brander Smith McKnight Lawyers are conveniently located in Sutherland, Parramatta, Wollongong and Sydney CBD.

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