To be appointed as the executor for a deceased person is an important role, which you must consider carefully before accepting. It is a voluntary role, which can be renounced, however once you have begun administering the estate (termed “intermeddling”) it can be difficult to discontinue.
An executor becomes the legal personal representative of the deceased person, and “fills their shoes” for most legal matters the person may have left unresolved, or which arise as a consequence of their death. First, it is the executor’s responsibility to attend to dealing with the remains of the person, including burial or cremation, and arranging a Death Certificate. Secondly, the executor is responsible for ensuring the terms of the will are carried out. Some common basic duties include calling in the assets of the deceased, paying any liabilities, distributing the estate to the beneficiaries according to the will, and ensuring taxes are paid.
In South Australia, a Grant of Probate is not always required, however it may be necessary – depending primarily on whether any assets owned by the deceased person require a grant of probate to be administered, and whether the deceased was involved in any unresolved Court matters. To obtain a grant, the executor must file the required documents with the Probate Registry at the Supreme Court, which will include the original will, a copy of the death certificate, and a statement of all assets and liabilities. In certain circumstances affidavit evidence from the executor, or from the witnesses to the deceased executing the will, can be required.
To ensure all assets are located, the executor must contact the deceased person’s financial institutions, insurance companies, utilities providers and all other organisations which may have assets of (or be owed money by) the deceased person. Inexpensive searches with the Land Titles Office will confirm any land owned by the deceased, which will require a solicitor or conveyancer to administer, and potentially a real estate agent if land is to be sold. Bank accounts must be closed, and other assets such as shares, property, and personal items may need to be sold or transferred. Before distributions to the beneficiaries, all liabilities must be paid and reimbursements to executors for expenses incurred in the course of administration.
The executor must distribute the assets to any beneficiaries according to the will. Some wills may make specific gifts of assets which then must be transferred. Some wills may require assets to be sold. And some may not make it clear whether assets are to be sold or transferred, which leaves the executor with discretion as to how to carry out the will. It is important to read the will carefully, and have it interpreted and advice given to the executor by a solicitor experienced in the administration of deceased estates.
Speak to one of our expert probate and estate administration solicitors to receive personalised advice regarding your role as an executor by calling 8223 3199.