Duties of the Executor

I have been appointed the Executor of a will; what now?

Dealing with the loss of a friend, or loved one is an extremely difficult and emotional time. It is often during this time that people will be surprised to discover they have been appointed Executor of a will causing further stress and confusion.

Like most things, it is the lack of knowledge or understanding which causes that stress and confusion. The feeling of being totally lost and not knowing where to start, or what is required of you. However, that need not be the case.

To assist in alleviating this anxiety, and sense of helplessness, we have provided a brief overview of your role and your obligations as Executor to help assist you through this difficult time. So, whether you have found yourself appointed to this important role unexpectedly, or you are looking for information you can provide someone you have appointed as Executor so they are aware of their obligations during your lifetime, please read on.

1. What is an Executor?

An Executor is the person appointed to administer a deceased person’s estate, in accordance with the terms of their will. They are interchangeably referred to as a Legal Personal Representative and have a number of powers conferred to them, and obligations imposed on them, by the Succession Act 1981 (Qld).

2. Duty to attend to Funeral Arrangements

The first obligation of an Executor is to attend to the burial, cremation or donations of the deceased’s body. This will often include attending to the organisation of the funeral or memorial service.

Whilst this is usually undertaken by the deceased’s family, it is ultimately an obligation of the Executor and the executor’s decision regarding the arrangements for the deceased’s body is final.

Often the Executor will be guided by the will, which often outline the deceased’s wishes, or a funeral plan arranged during the deceased’s lifetime.

It is important to note that any wishes contained in the deceased’s will are just that, wishes, and are unenforceable; unless there is a direction that the deceased be cremated.

Section 7 of the Cremations Act 2003 (Qld) stipulates that where the deceased has left signed instructions for their remains to be cremated, including a will, the Executor must ensure that the deceased is cremated in accordance with the signed instructions.

3. General Obligations

An Executor’s obligations are generally set out in Section 52 of the Succession Act 1981 (Qld). The Trusts Act 1973 (Qld), Uniform Civil Procedure Act 1999 (Qld) and Land Title Act 1994 (Qld) are also relevant and provide further provisions which may apply to an Executor.

These are in addition to common law fiduciary duties. By way of an overly simplified explanation this is a duty to act loyally and in the best interests of another. Accordingly, an Executor owes a fiduciary duty to the beneficiaries and must act in a way which preserves the estate, protects the interests of the beneficiaries and avoid acting in a conflict of interest. That is, where there is a conflict between the Executors duties to the estate and their own personal interests.

An Executor must act in a way that is just and reasonable at all times.

We note that as a summary, an Executors duties may be summarised as including, but not limited to:-

• Arranging the funeral of the deceased;
• Obtaining a Grant of Probate from the Supreme Court, or a Grant of Letters of Administration, as the case may be, if required;
• Finding and notifying beneficiaries listed in the Will or as beneficiaries under the laws of intestacy;
• Identifying the assets of the estate;
• Protecting the assets of the estate. This includes ensuring relevant assets are stored correctly, and insured;
• Collecting and arranging the personal items of the deceased, including valuables;
• Collecting continued income;
• Determining the debts and liabilities of the estate and arranging for payment of such debts;
• Preparing tax returns and finalising the deceased financial and tax affairs;
• Arranging for the transfer or sale of assets;
• Defending the estate from any claims or applications, if applicable;
• Maximising the value of the estate;
• Distributing the estate in accordance with the provisions of the will in a timely manner.

Ordinarily any expense or liability incurred whilst acting as Executor is indemnified by the estate, unless they act in a way that is not just, reasonable or is in breach of the fiduciary obligations.

4. What if there is more than one Executor?

It is common for more than one Executor to be appointed under a will. This can be for any number of reasons, whether to alleviate the pressure on a single person, ensure there are checks and balances in place, to present a presumption of fairness where conflict may be expected, or simply to ensure that all involved feel included and part of the process.

Where more than one Executor has been appointed, they must act jointly. That is, all decisions must be unanimous. A maximum of four Executors may be appointed to act together.

5. Am I protected?

A properly appointed Executor, acting diligently and in accordance with their obligations is indemnified by the estate of the deceased.

This means any costs properly incurred by the Executor during the administration of the estate, will be repaid by the estate prior to any distribution to the beneficiaries.

An Executor is may also protected from any claims which may arise during the proper distribution of the estate by Section 44 of the Succession Act 1981 (Qld).

6. What Next?

Get specific advice. Whilst this is general advice to assist you in understanding the role of an Executor, each estate is different.

Estate Administration can be complex and if not carefully managed, may result in an inadvertent breach of your obligations and significant loss to the estate.

It is also an area of law governed by numerous pieces of legislation such as the Succession Act 1981 (Qld), the Uniform Civil Procedure Act 1999 (Qld), the Property Law Act 1974 (Qld), the Land Title Act 1994 (Qld), the Trusts Act 1975 (Qld), the Duties Act 2001 (Qld), Superannuation Act 1976 (Cth), Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).

Please contact our office today to arrange an appointment with one of our experts and ensure you receive the right advice.