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Executioner from Robin Hood

‘Executor’ not Executioner: What to do if you are appointed as an Executor under a Will

By Sam Ryall

Finding out that you have been appointed as an executor pursuant to a loved one’s or friend’s Will can be a daunting experience. Immediately, your mind may turn to the following questions:

  • What is an executor?
  • What are the roles and responsibilities of an executor?
  • Can I seek legal advice as an executor to assist me in administering the estate or assets of my loved one or friend?’

These are just a sample of the various questions that an executor may ask themselves. However, being appointed as an executor need not necessarily be such a daunting responsibility. Whilst striving to give guidance to executors on estate administration and practical tips, this blog provides basic information only and independent legal advice should be sought from a qualified solicitor as to specific circumstances.

 

Executor and Testator: Defined 

Broadly speaking, an ‘executor’ is a person or a corporation appointed under a Will to administer the estate of a ‘testator’ or the deceased person. The ‘testator’ is the person who the Will is drafted for i.e. the Will is written in their name and they sign ‘off’ on the document.

 

Practical Tips and Common Roles and Responsibilities of the Executor

Whilst not exhaustive, the following is a basic ‘checklist’ an executor can utilise to ‘start the ball rolling’ in administering a testator’s estate:

  1. Determine the assets (e.g. funds in the testator’s bank account, property, chattels) and liabilities (debts) of the deceased’s estate;
  1. Make contact with other executors if you have been listed as a joint executor in administering the deceased’s estate;
  1. Arrange for and obtain the original death certificate of the testator from the funeral director or enquire as to obtaining a death certificate from the Office of Births, Deaths and Marriages;
  1. Locate the original Will of the testator;
  1. Compile or provide information to the solicitors you engage for assisting in the administration of the testator’s estate such as their bank accounts, funeral debts, health insurance/outstanding medical bills, taxation paperwork (such as Group Certificates and the like) and rates/electricity/water/body corporate/phone bills or levies;
  1. Seek legal advice as to whether a Grant of Probate will need to be obtained from the Supreme Court (or not) in administering the deceased’s estate.

 

Family Provision

An executor should always be mindful of the possibility of a family provision application or Testator Family Maintenance (‘TFM’) claim. A family provision application can be brought by a person who believes that adequate provision has not been provided to them for their proper maintenance and support under the testator’s Will or through an intestate estate (i.e. an estate in which the testator has not executed a valid Will) and they were dependant on that testator throughout their lifespan as a spouse, child or dependant. For what constitutes a ‘child’ or a ‘dependant’, see Section 41(1) of the Succession Act 1981 (Qld) (‘the Succession Act’).

Importantly, Section 44 of the Succession Act provides protection to executors from family provision applicants in distributing a testator’s estate. Most notably, Section 44(3)(a) of the Succession Act provides that no action can lie against an executor in distributing the testator’s estate if that distribution has been made properly and occurred not earlier than six (6) months after the date of the testator’s death if no notice has been given as to a family provision application.

Section 44(3)(b) of the Succession Act provides that if notice has been given in writing by the applicant as to a family provision application and signed by the applicant and or a solicitor, no action will lie against the executor if the distribution of the testator’s estate has been made properly and not earlier than nine (9) months after the date of the testator’s death unless the application has been commenced in court or the executor has been served with a copy of the application by the applicant or the applicant’s solicitor.

 Just Us Lawyers routinely attends to executors and assisting them with their roles and responsibilities in distributing the estate of a testator. If you have been appointed as an executor under a testator’s Will and need guidance, please do not hesitate to call or email Just Us Lawyers today –  Sam Ryall and our team of solicitors will be more than happy to assist.

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