Cairns Wills & Estate Lawyers | Will Disputes and Estate Lawyers

What are the Rights and Responsibilities of an Executor to a Will?

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Being appointed an executor of a Will can seem like a daunting and overwhelming task. What do I do next? When do I have to do it? How do I do it?

Primarily, the executor is required to identify and gather all the assets of the estate and to administer the assets of the deceased in accordance with the Will.

This can involve:

  • searching for the original copy of the Will;
  • applying for a Grant of Probate;
  • lodging taxation returns on behalf of the deceased or estate;
  • collecting and transferring assets;
  • advising beneficiaries of their entitlements;
  • paying debts of the deceased/estate; and
  • distributing the assets

Applications for a Grant of Probate, if required, should occur as soon after the death of the deceased as possible. If there is a delay in making the application beyond 6 months, an explanation will need to be made to the Court explaining the delay.

Once the Grant is obtained the executor can begin dealing with the assets of the estate. Assets can include cash in the bank, real estate, bonds held by nursing homes, shares in companies, interest in a business, life insurance, vehicles and superannuation. These assets can be held solely by the deceased or with others, such as a spouse. Depending on the type of asset and how they are held will determine how the executor will deal with them. For example:

  • Are the assets to be sold or transferred?
  • Are the assets being held safely, for instance, are they appropriately insured?
  • Are there timing issues for the sale or transfer of assets?
  • Are there any debts of the deceased that need to be dealt with?

An executor should receive proper legal and tax advice when determining the best way to deal with the assets of the estate, noting the overriding question is ‘is this in the best interests of the beneficiaries?’ Some of the issues that need to be covered can be capital gain tax, land tax, income tax, issues with the Will or releasing some of the assets.

Once the assets have been gathered, decisions need to be made as to how they should be dealt with the executor is responsible for distribution to the beneficiaries in accordance with the Will.

To ensure that all creditors of the estate have been paid, the estate should not be fully distributed until 6 months after the date of death AND the requisite notice has expired. Interim distributions of some of the assets may be appropriate in certain circumstances.

Occasionally, issues regarding the Will and whether it is valid can be raised. In certain circumstances, individuals may make a claim on the estate if they have been omitted from the estate or they have not been given enough of a share of the estate. In those circumstances, the executor should obtain legal advice as to what their responsibilities are.

For further information, get in touch with the team at Cairns Wills and Estates. 

 

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