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Checklist for Executors

Posted by Joel Siepmann | 01 July 2019 | Legal Developments

An executor is a person appointed by another in a will to act in respect of the estate of the testator upon his or her death. An executor is the legal personal representative of a deceased person.

THE WILL

  • Locate and examine the original Will – consider whether it appears properly executed.
  • Ensure you have been appointed Executor and have authority to take control of the estate.
  • Check for funeral instructions in the Will that should be followed as far as possible. The first job of an executor is to arrange the funeral.
  • Check the Will for information that will help you identify any assets that need to be protected.

THE FUNERAL

  • The Executor is responsible for arranging the funeral and should confer with family
  • Ensure the Funeral Director orders a Death Certificate
  • In most cases, a funeral account can be paid from the deceased bank account. Noting that banks will often freeze the account of the deceased pending a grant of probate & administration.

ASSETS AND LIABILITIES

  • Obtain details of assets and liabilities of the estate
  • Conduct a search of the deceased’s home and belongings if appropriate to locate bank account and investment details, as well as accounts for rates and utility bills, credit cards and possibly title deeds and any other important documents that might be applicable.
  • Secure the property and notify insurer of the death.
  • Centrelink or Veterans Affairs may need to be notified (If not, overpayments of benefits might be made that will need to be repaid).

SEEK PROFESSIONAL ADVICE

You may be personally liable if you get it wrong! Consult a solicitor and if relevant, meet with the deceased’s accountant to determine tax liabilities and tax requirements.

VALUE ASSETS

Prepare detailed inventory of assets and if relevant obtain values of assets.

PROBATE

Depending on the value of the assets an Application for Probate may have to be made to the Supreme Court. If no will exists, it may be necessary to obtain a grant of Letters of Administration. Probate involves: Preparing Court forms and lodging them in Court.

BENEFICIARIES

  • Formally verify estate beneficiaries through statutory declarations or birth certificates.
  • Obtain their instructions regarding the sale or transfer of assets when appropriate.
  • Pay any legacies and release specific bequests as per the terms of the will.
  • Make interim partial distributions to beneficiaries, if necessary.
  • Obtain income tax clearance to date of death from the ATO. The deceased’s accountant can usually assist with this.

DEAL WITH THE ASSETS

  • Open an estate bank account or you can use a Solicitor’s Trust Account
  • Close the deceased’s bank accounts and deposit to the estate account. That may need to await probate.
  • Pay debts from the asset proceeds
  • Sell or transfer assets to the beneficiaries. Depending on the assets this could involve share transfers, contracts with brokers, titles office forms and selling real estate

OTHER CONSIDERATIONS

  • Getting paid – you may be entitled to Executor’s commission
  • Ongoing estates: life interests, testamentary trusts, challenges or claims against the estate. Proceed carefully and obtain legal advice ASAP.

The role of an Executor of someone’s Will is an important and responsible one. It can also be complex and time consuming particularly at a time of often great emotional distress.

An executor of a Will should know what needs to be done and act quickly to get the deceased persons affairs in order.

You do not need to go through this alone.  The team at Nexus can help you work through your responsibilities to ensure that the wishes of the deceased are fulfilled as quickly and painlessly as possible.

Joel Siepmann
Lawyer, Donlan Lawyers (a member of Nexus Law Group)
jds@nexuslawyers.com.au

 

 

 

This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.

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