The Role of Executor of a Will or Administrator of Estate

Who is the executor of a Will? What does an executor of a will do?
These are key questions in the Estate administration process.

An Executor is the person nominated in the deceased person's Will. The Executor of Estate was likely nominated as a trusted person who knows the deceased person well, hence being in the best position to administer the Deceased Estate in the best interest of the deceased person to fulfil their final wishes.

Where a Will exists, in most cases, one or more Executors are nominated. However, there are also Wills where no one is nominated and instances where no Will exists at all. In such cases, the person taking on the role and duties conferred on an Executor would be referred to as Administrator.

An Administrator is mostly a senior available Next of Kin of the deceased person who agrees to take on the role and duties to administer the Deceased Estate according to legislation applicable to situations where no Will is in place.

• find the Will if one was left and establish validity;
• arrange the transportation of the body and the funeral;
• obtain the Death Certificate from the state/territory's Registry of Births, Deaths and Marriages;
• determine the Beneficiaries and ascertain the deceased person's assets and liabilities (see Steps 13 – 25);
• assess the Estate value based on the deceased person's assets and liabilities;
• apply for Grant of Probate or Letters of Administration if required;
• pay off the deceased person's debts, income tax, duties and funeral expenses;
• distribute the assets according to the terms of the Will or the relevant laws; and
• act in accordance with fiduciary duties.

As you can see, your duties as Executor of a Will (or as Administrator of an Estate) are quite numerous and, depending on the size and complexity of the Estate, these can be time consuming to undertake. Soon enough, you'll realise that, in order to fulfil your Administrator or Executor obligations, you will need to commit time and energy, and exercise prudence, patience and astuteness at all times. This is why the role of Executor of an Estate (or as Administrator) is one that needs to be taken seriously.

• always act in good faith;
• always act in the best interest of the Deceased Estate; and
• never make decisions or take actions that will benefit you directly or indirectly (also known as conflict of interest).

Remember, the main objectives of an Executor and Administrator are to establish the value of the Estate, administer it and distribute the Estate to the Beneficiaries. This Deceased Estate Administration Guide will come in handy as you work through each step of the process.

Just as being the appointed Executor or designated Administrator of a Deceased Estate comes with a number of responsibilities, your role also involves certain powers or rights.

• Managing all assets of the Deceased Estate (as prescribed by law), such as bank accounts, stocks, bonds, real estate property, etc.
• Taking an inventory of assets
• Investing assets
• Selling off personal and real property which is part of the Estate
• Paying off debts or loans and Estate taxes, and handling claims and other expenses related to administering the Estate
• Determining the Testator's employee benefits
• Taking care of the testator's business
• Providing accounting reports to the Beneficiaries and the Court as required
• Keeping Beneficiaries updated on important financial matters on a regular basis
• Mediating between Beneficiaries should disputes arise
• Distributing assets to the Beneficiaries
• Winding up, settling and closing out the Estate

Wills that name only a single Executor are simpler to administer as the person appointed can go through the administration process without needing joint authorisations. Sole Executors will also be able to best act in the interest of the deceased without getting entangled in disagreements with co-Executors.

Wills that name multiple Executors can be more difficult to administer as the persons appointed need to act jointly unless Executors are differentiated in the Will as primary or secondary (also referred to as substitute or alternative) Executors.
If the Will expresses joint executorship or does not differentiate, the Executors can agree to act jointly or authorise one of the Executors to act on their behalf as if they were the sole Executor nominated in the Will.

If you agree to act jointly, you can move to Step 5.9 below.
If you want to authorise one of the Executors to act on everyone's behalf, then you can follow the process outlined below for the relevant state/territory:

In cases where it is known that no Will exists, who can be appointed Administrator of an Estate? Who can apply for Letters of Administration?

It is, of course, the responsibility of the Administrator of the Estate to apply for Letters of Administration.
When no Will can be found and the family is also unaware of a Will having been put in place, it is said that the person died intestate. The Next of Kin who will most likely be appointed the Administrator of Estate will administer the Deceased Estate following the Executor process.

• the deceased person's spouse;
• children over the age of 18;
• parents; and
• siblings over the age of 18.

If you are the person or one of the persons named in the Will as Executor of Estate or you are the most senior available Next of Kin who will most likely be administering the Deceased Estate as Administrator of Estate, you should first decide whether or not you want to take on the Administrator or Executor duties outlined above.

Some of the duties of an Executor may seem daunting at first, but simplyEstate provides clear guidance to help you navigate through the Estate Administration process. simplyEstate has also partnered with numerous trusted service providers across Australia for each step when things get a bit tricky or you want to take advantage of some support along the way.

• the deceased has likely nominated you based on their trust and belief in your ability to administer the Estate as per their wishes if a Will is in place;
• Deceased Estate Administration, on average, takes between six and 12 months depending on the complexity and size of the Estate; and
• a good relationship with the immediate family and Beneficiaries is in place or can be established to ensure the Estate can be administered and distributed as intended.

If you decide to take on Executor duties and act on behalf of the deceased, congratulations! You can always count on simplyEstate to support and guide you. Book a phone appointment if you are ever in doubt or don't know how to proceed.

The decision to take on Will Executor duties (or the Administrator role) should be made as soon as possible and before taking any Estate Administration steps. The reason for this is to protect the Estate and its Beneficiaries as well as creditors. If you do not intend to take on the duties, it is best not to start with the administration process, as doing so may be interpreted as you having assumed the role and you may be unable to resign as Executor or Administrator (also referred to as renouncing as described in Step 5.8 below).

However, you may still be able to renounce your role as Executor or Administrator after making arrangements for the body transport and funeral to not delay this important activity, if your specific circumstances require this.

Can an Executor appoint another Executor or renounce executorship?

If you are nominated as an Executor of a Will and are unable or unwilling to act as Executor and take on the duties of an Executor, you can officially renounce your role as Executor. You will need to formally renounce executorship by completing, signing and filing a renunciation of executorship form with the Supreme Court of the applicable state/territory.

In this situation, the secondary (also referred to as substitute or alternative) Executor(s) will be appointed if there are multiple Executors nominated in the Will.

• a close relative;
• a close friend;
• a third-party Executor (e.g. Lawyer); or
• your state/territory's Public Trustee.

If you are not nominated as the only Executor of the Will, you can complete the relevant documents and provide these to the Executor who will apply for Grant of Probate as outlined in Step 27 or you can submit and file your renouncing document directly with the relevant Supreme Court by state/territory as explained below:

It is not unusual for the Executors of a Will or Administrator of an Estate, Next of Kin and Beneficiaries to disagree over certain views and decisions along the way. Disagreements are ideally discussed and mediated between the parties.

• The Executor or Administrator did not sufficiently communicate with the Beneficiaries;
• The Beneficiaries are impatient and do not necessarily understand the steps, decisions and administrative activities involved;
• The time taken by the Executor or Administrator to administer the Estate exceeds a year;
• The Executor or Administrator is seen to be taking advantage of the powers vested in them to advance their personal interests and not those of the Beneficiaries (conflict of interest);
• The Executor or Administrator did not locate all the property and did not insure it appropriately;
• The Executor or Administrator did not keep accurate accounts; and
• The Executor or Administrator did not administer the Estate as per the Will.

Most issues can be resolved through open and frequent communication. As the Executor or Administrator of a Deceased Estate, it is worthwhile letting family members know what needs to be done, what you are currently working on and what the next steps are.

You may also find it useful to share this website with them, so they can learn about the process, appreciate the work you are doing for them and provide you with support rather than question your actions.

simplyEstate is here to help. You can book a phone appointment to discuss the administration or any disputes you have to help determine the best course of action.