The Executor: A Brief Overview
As an Executor, you are the person that carries out the wishes that have been stated in the Will of your Executee. In Victoria, Executors are granted formal authority through a process of application to the Supreme Court of Victoria, and granted a probate (i.e. a legal document that certifies that a Will is valid and can be acted upon).
The probate gives the Executor the legal right to administer the Estate of the deceased person, gives control of assets mentioned in the Will and allows for the Executor to carry out the specific instructions set out in the Will.
Your Roles and Responsibilities
Managing and Protecting Assets. The Executor must protect all assets of the estate until they are distributed to the mentioned beneficiaries.
Avoid Conflict of Interest. The Executor must act in the best interest of the Estate and the beneficiaries mentioned in the Will.
Compliance and Legal Obligations. The Executor must comply with their legal obligations, and can be held legally liable for the incorrect administration of the Will (for example: damage to assets, going against request of the Will maker).
Prove your Will. The Executor’s role comes into play after you pass away. The Executor will need to prove to the court or Registrar of Probates that the Will is your last valid Will (also known as applying for probate) in order for all assets to be released.
Applying for a Probate. Although not compulsory, particularly if assets are under $100K, it is a sensible thing to do, as it makes sure that the Will is final and leaves less chance of any possible challenges to it at a later stage.
Please note: The Executor is a legal responsibility and they can be sued if they have incorrectly administered the requirements of the Estate.
Being appointed as an Executor is an important decision. Consider the following when accepting to take up this responsibility.
- Are you prepared to spend time contacting beneficiaries and spending time administering the Estate as required?
- Are you prepared to be legally bound to conduct the requests required of you?
- Are you willing to be responsible for the Estate?
- Are you aware and comfortable with your legal obligations?
- Do you have all the information that you need (business, legal and financial) to carry out the last wishes?
Remember, once an Executor has been chosen and probate granted, it is not possible to simply opt out of this role.