Executor of Will Duties

Executor of Will Risks

As executor must perform a range of duties to ensure the will maker’s assets are preserved and then distributed in accordance with their wishes. If there is any ambiguity as to what is intended by the will, the executor risks personal liability if a distribution is made under an ambiguous will provision otherwise that how a court would interpret that clause in the will. An executor must always act in the best interests of the estate and beneficiaries and protect - and in many cases grow - the assets of the estate until they are distributed. Failing to act in the best interests of an estate and its beneficiaries can open up personal liability for an executor and a challenge to the executor's appointment. Some of these risks go without saying but there are traps for the unwary. The major risks and responsibilities are as follows:

• Carry out the wishes of the will maker according to the will

  Whether the will maker wants to distribute their assets evenly between family members or donate their entire estate to charity, it’s the executor’s responsibility to fulfil their requests. Beware of any provision in a will that is an ambiguous will provision or might have more than one interpretation

• Act in the best interests of the estate and beneficiaries

  If you fail to act in the best interests of an estate and its beneficiaries, your validity as an executor may be challenged and you may bear personal responsibility to a disgruntled beneficiary.

• Manage and protect assets of the estate until they are distributed to the beneficiaries

  The executor must ensure that any property and other assets are properly maintained until they can be sold and distributed among beneficiaries. For example, they must not allow the deceased person’s home to fall into disrepair while waiting for the will to be finalised and funds should be invested appropriately.

• Ensure liabilities of the estate are paid

  Liabilities of an estate can include taxes and outstanding debts. Ensuring these are properly taken care of will protect the estate from losses.

• If more than one executor is appointed, collectively agree on a course of action

  Disagreements between executors of a will can lead to delays in asset distribution. Collectively agreeing on a resolution will help minimise delays.

• Maintain accurate records dictating how the estate has been managed and distributed including a financial summary

  Efficient record keeping can help executors avoid confusion and conflict. The financial summary should display the estate’s assets and liabilities, with particulars on how these have been resolved and distributed among beneficiaries.

• If a conflict arises, disclose the circumstances to beneficiaries and seek written consents as to the course of conduct proposed to be taken;

  Executors and beneficiaries may encounter conflict on a range of issues, including:

  1. The value of assets
  2. Misappropriation of funds
  3. Poor management of assets
  4. The sale of an asset, such as a house.

  In order to avoid delays in the administration of a will, executors are responsible for maintaining communication between all relevant parties.

• If the will maker has not proposed funeral arrangements, to decide those arrangements

  Making funeral arrangements is often one of the first tasks an executor must undertake.

• Communicate regularly with beneficiaries as to steps taken as regards administration of the estate

  Executors are obligated to keep beneficiaries informed of any progress made in the administration of the estate.

Don’t want to be executor?

If you wish to renounce your role as executor, you can do so. Consideration should be given as to who might be prepared to act in your place. Alternatively, you may prefer to  appoint a lawyer or other qualified professional to manage the administration of the estate under your direction.

If there are multiple executors appointed under the will, the renouncement by one executor usually will not have any material effect and the will be no need to appoint a replacement.

Likewise if the will already provides for an alternate executor in the case of the first named executor having died or declining to act.

Do executors of a will get paid?

Unless they have been appointed to manage a will in a professional capacity, executors don’t usually get paid.

They may however by order of the court or agreement of all beneficiaries, be paid a "commission". The extent of that commission depends on the extent of work performed by the executor or administrator and the nature of the assets that they were required to manage and distribute.  

Use our free online Assessment Tool to evaluate the amount of commission an executor or administrator might be entitled to claim in any particular circumstance.

 

Fulfilling your responsibilities as an executor of a will may require legal advice. For more information on executing a will in Queensland, contact us online or by calling 1300 580 413.

When should beneficiaries be notified?

The executor or administrator should notify any beneficiaries of the will as soon as possible. All beneficiaries and family members are entitled to receive a copy of the will.

Failing to notify beneficiaries can lead to a complaint as to the administration of the estate being unduly delayed and is a risk to the tenure of the executor or administrator.