I’m appointed as an Executor - what do I have to do?
|In a number of previous issues of WMM Law News, we have talked about cases where Executors have done something wrong, but what is it that Executors are actually supposed to do?
An Executor is the person or persons responsible for managing and dealing with a person’s estate after their death, in accordance with their Will. An Executor is appointed by a person’s Will, and once a Grant of Probate has been issued by the Court, they have the formal legal authority to deal with the estate.
Executor’s duties: An Executor is tasked with a range of duties, including:
The role of an Executor is one of considerable responsibility and trust, and can be a significant undertaking. For this reason, an Executor has overarching duties which they must adhere to when making decisions and taking actions, such as:
- arranging for the proper disposal of the body and making funeral arrangements;
- making an application for a Grant of Probate of the deceased’s Will;
- determining the assets of the estate, and “calling in” and preserving the value of those assets (including recovering any amounts owing to the estate, and if appropriate arranging for assets to be invested);
- determining the liabilities of the estate, and arranging for the payment of any debts owed by the deceased (including funeral, testamentary, and administration expenses, as well as any tax liabilities);
- if any legal proceedings are brought which involve the estate, seeking advice and if appropriate engaging with, and representing the estate in, those proceedings;
- maintaining accurate accounts for all financial transactions involving the estate;
- distributing the estate in accordance with the terms of the deceased’s Will; and
- finalising the administration of the estate.
Who are Executor’s duties owed to? Executor’s duties are primarily owed to the beneficiaries of the estate. However, they may also owe duties to other persons in particular circumstances (for example, creditors of the deceased).
- acting with reasonable care and diligence; and
- acting in good faith in the best interests of the estate and all of the beneficiaries.
Executors can be held personally liable by beneficiaries for failing to act in accordance with their duties. Common allegations brought against Executors include favouring some beneficiaries over others, or distributing assets against the directions provided in the Will. Breaches of duty can also result in the Executor becoming personally liable. For example, where an estate is fully distributed before all liabilities are paid, it is the Executor (not the beneficiaries) who is responsible to pay those outstanding liabilities.
A person appointed as an Executor should be mindful of their duties and obligations when deciding whether to accept their role as Executor. If they decide not to accept their appointment as Executor, this decision should be made at the earliest possible opportunity, before involving themselves in the administration of the estate, and certainly prior to applying for a Grant of Probate. Once Probate has been granted, only the Court can remove an Executor—they cannot simply resign or pass their duties to another person, and those duties are not limited by time: they remain for life.
The ongoing nature of the duties of an Executor was illustrated in the recent Western Australia case of O’ Sullivan v O’Sullivan  WASC 168.
The facts: Jean Mary O’Sullivan died on 8 April 2015. She was survived by family, including a daughter, Jeannie Franks, and a son, Michael O’Sullivan.
Jeannie had been Mrs O’Sullivan’s carer for over 10 years, before becoming estranged in the years leading up to Mrs O’Sullivan’s death. There was a history of estrangement between different members of the family, including between Michael and Mrs O’Sullivan at various times during Mrs O’Sullivan’s life.
When Mrs O’Sullivan died, she appointed Michael as her Executor. Michael applied for, and was issued, a Grant of Probate of the Will on 21 January 2016.
Jeannie did not receive a copy of Mrs O’Sullivan’s Grant of Probate (with the Will annexed) until September 2019, and in June 2020, made an application for further provision from the estate.
On 12 November 2020 (nearly five years after the Grant of Probate was issued), leave was granted to Jeannie to make the application out of time.
When Jeannie made this application, Michael, in his capacity as Executor, did not engage with Jeannie or the Court in relation to the application. He did not appear or take any part in the proceedings.
Held: The Court described the obligation of an Executor to respond in proceedings in relation to the estate as “a fundamental aspect of an Executor’s duties”. By failing to respond, Michael had failed to discharge his duties as an Executor, and this justified his removal as Executor.
The Court found that Jeannie was not left with adequate provision, and ordered that she receive the entirety of the deceased’s admittedly modest estate. Orders were also made removing Michael as Executor, and requiring him to pay Jeannie’s costs of the application.
Relevance in Tasmania: Though a Western Australia decision, the obligations on Executors derive from common law, and are reasonably consistent throughout Australia. This case demonstrates the importance of an Executor fulfilling their duties in accordance with the law, particularly where a claim is made against the estate.
It also illustrates that the role of Executor is not limited by time: if a further estate asset is identified some 10 years after the administration of the estate was thought to be finalised, the Executor must step back into their role to administer that asset.
Key points for Willmakers: Willmakers must turn their mind to considering:
Key points for someone appointed as an Executor: If you are appointed as an Executor, this case highlights the importance of:
- if you have chosen the ‘right’ person to appoint as Executor;
- the relationship between the Executor and the beneficiaries;
- the willingness of the Executor to act; and
- the complexity of your affairs.
How can we help? WMM Law has specialist skills and experience in estate administration, including advising about Executor’s duties generally, and more specifically assisting Executors with the administration of estates where complex circumstances interact with the duties of an Executor. Please contact Kate Moss, Megan Bird, Leanne Rama or Sean Oosthuizen if you, or anyone you know, need expert advice and guidance about administering an estate in such circumstances, in a timely, professional and cost-effective manner.
- considering carefully whether you wish to accept the role of Executor before taking any steps to interfere with or carry out the administration of an estate;
- being aware of the ongoing nature of the role of Executor, if you choose to accept your appointment; and
- seeking legal advice if a claim is brought against the estate, or if you are in doubt about your duties and obligations.
Alternatively, if you need expert advice and guidance about preparing a comprehensive estate plan, including providing advice and preparing strategies for appointing the most appropriate person in your circumstances to be an Executor, please contact our estate planning lawyers Kimberley Martin or Casey Goodman.
Further information can be found at our website www.wmmlaw.com.au
Contributions and suggestions from WMM Law News readers are always appreciated. Email us at email@example.com
This newsletter contains material for general educational purposes and is not designed to be advice to any particular person about their own affairs as it does not take into account the circumstances of the reader as an individual. It is recommended that appropriate professional advice be obtained by each reader so that reliance can be taken upon that advice.
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