The Role of Executors and Administrators
Typically, a person has been nominated in the Will of the deceased to act as the Executor of their estate. Should you accept this role, you will be responsible for carrying out the legal steps that are necessary to deal with the Will and the deceased’s estate, including dealing with the assets and liabilities.
It’s important that an executor receives advice from an experienced lawyer during this process. Estates often involve assets of significant value and potentially competing interests from beneficiaries or others who may not have been provided for under the deceased’s Will.
Services provided by Armstrong Lawyers to Executors
When you engage our firm you will receive the benefit of our lawyers wealth of experience in this area. We aim to provide fast and effective handling of your legal matter.
Armstrong Lawyers provides assistance and advice to executors to ensure that:
- The executors are attending to their legal responsibilities. For example, this may include action to secure the assets;
- The decisions they make are proper and minimise any personal liability that an executor may be exposed to;
- The inconvenience to them is minimised. On some occasions, if an executor is elderly or has work or other caring commitments, we can provide a complete service, subject to the executor still having to exercise their decision making role; and
- Executors receive reimbursement of expenses and advice about any claim for executors’ commission that arises from their role as the executor of the estate.
What is the administration of estate?
The administration of an estate is the process of dealing with a deceased’s estate, which includes identifying assets, arranging their collection, paying outstanding expenses, complying with legal and tax requirements, ascertaining beneficiaries and distributing the assets in accordance with the last Will.
What happens when someone dies without a valid Will?
When a person dies without a valid Will they die ‘intestate’ and their estate will be distributed according to the relevant legislative provisions rather than the deceased’s wishes. To find out about Drafting a Will, click here.
Can I challenge the validity of a Will before probate is granted?
You can lodge a caveat with the Registrar of Probates, which lasts for 6 months unless renewed. With a caveat in place, the caveator is given notice and must file grounds of objection to a Will within 30 days of an application for probate. After the objection is heard, the matter is then referred for directions to the Practice Court of the Supreme Court.
Can I challenge a Will after probate has been granted?
A grant of probate can be revoked by an application to court. However, the challenger has a heavy onus, being required to show the grounds for revocation of the grant and also an explanation for the failure to prevent the grant in the first place.
What does an Executor or Administrator do?
Typically the Executor is responsible for:
- submitting the Will for probate (although it is not absolutely required that he or she do so);
- collecting assets and arranging for payment of debts of the estate;
- distributing assets to beneficiaries and charities as directed under the Will;
- obtaining information about any other potential heirs;
- approving or disapproving creditor’s claims; and
- calculating estate taxes, filing necessary forms and making tax payments.
The Executor is also the representative of the estate and has the ability to sue or be sued on behalf of the estate.
Can an executor or administrator be removed?
Section 34 of the Administration and Probate Act, allows the removal of an executor if:
- the executor/administrator remains out of Victoria for more than two years;
- they desire to be discharged from this office;
- they are unfit or incapable to act in this office; or
- they have committed a breach of trust.
What are executors entitled to under a Will?
Executors can only make limited claims for the duties they perform. They are entitled to expenses incurred in carrying out the Will, and while they may claim for executor’s commission, this is not an automatic right.