The executor is the person appointed in the will to bring in the will-maker’s assets into the estate and be responsible for distributing the will-maker’s assets as per his or her wishes specified in the will, after he or she has died. Pending distribution, the executor must manage the estate.
The executor must also ensure that all liabilities of the estate are satisfied. This will require payment of household accounts such as telephone, utilities and services as well as credit card debit balances and income tax.
An executor may choose to do so everything themselves or instruct a solicitor take the necessary steps at his or her direction, including notifying and communicating with the beneficiaries as to their entitlements and the progress of the administration of the estate.
In Queensland, these are specified by the Succession Act 1981 and include obligations to:-
- Carry out wishes of the will maker according in the Will;
- Act in the best interests of the estate and beneficiaries;
- Manage and protect assets of the estate until they are distributed to the beneficiaries;
- Ensure liabilities of the estate are paid;
- In the event that more than one executor is appointed, collectively agree on a course of action;
- Maintain accurate records dictating how the estate has been managed and distributed including a financial summary;
- If a conflict arises, disclose the circumstances to beneficiaries and seek written consents as to the course of conduct proposed to be taken;
- In the event that the will maker has not proposed funeral arrangements, to decide those arrangements;
- Communicate regularly with beneficiaries about steps taken regarding administration of the estate.
In addition to their statutory duties, an executor also holds a fiduciary duty in relation to the estate and the beneficiaries arising out of to duty to act in the best interests of the estate at all times.
If an executor is also a creditor or a co-beneficiary they must always act transparently and not appear to favour their personal interest. In cases of actual conflicts, the express written consent of beneficiaries should be obtained as to the course of conduct the executor proposes.
Executors must not seek to profit from their position.
If more than one executor is appointed, they must consult to decide issues concerning estate assets and beneficiary entitlements.
Executors are accountable for the decisions you make and the management of the affairs of the estate. They are legally liable for their acts and omissions in performing the role.
What do you tell the beneficiaries?
An executor does not have a legal obligation to tell beneficiaries that they will receive gifts as stated in the will before they are distributed. A beneficiary is entitled to receive a copy of the will upon request.
Should there be a reading of the will?
A formal reading of the will does not commonly occur. Rather, copies of the will are distributed. If an executor prefers a formal reading, he or she should notify the beneficiaries to attend an appointment with the solicitor appointed by the executor, for that purpose.