“O Death, where is thy sting? O grave, where is thy victory?” (1)

March 31, 2016

– Is it acting as an executor?

A family member asks you to be the executor of their will. You’re flattered and agree immediately, but what are you letting yourself in for?

First, the deceased’s assets have to be protected. This may mean changing locks on the deceased’s residence.

Next you will probably have to assist in arranging the funeral. Check whether the deceased had a pre-paid funeral plan. It is the executor’s responsibility to carry out the deceased’s wishes. Often the family knows the deceased’s preferences or their wishes are in their will.

Then there is applying for probate. The will may be among the deceased’s personal papers, or the deceased’s solicitors may advise that they hold the will. If there is more than one will, a later will revokes an earlier one, but the executor should keep all the wills in case the validity of the latest will is challenged.

Be sure not to clip or pin anything to a will as the Supreme Court will want to know if a codicil has been removed from the will. Holes or indentations on the will have to be explained in the executor’s affidavit when applying for the Grant of Probate.

The Supreme Court requires a statement of the deceased’s assets and liabilities. Valuations of real estate and of all shares held by the deceased at the date of death may be needed. The deceased’s accountant should be able to assist.

Don’t forget the deceased’s online assets. Hopefully the deceased has a record of user names and passwords for online accounts, share trading accounts, time share credits, frequent flyer points, Facebook, Flickr, blogs and eBooks.

The family may not be aware of online assets and valuable family photographs and other content may be lost.

Once the Supreme Court has granted probate the executor can deal with the assets and follow the deceased’s instructions in their will.

An income tax return for the deceased must be lodged from 1 July to the date of death and for the estate from the date of death to 30 June. The executor must apply for a Tax File Number for the estate.

The person appointed as executor is usually the person appointed as trustee of any property held on trust, e.g. if there are minor children, but this is not always the case.

The Grant of Probate for a straightforward estate may take a few weeks to gather the information required to support the affidavit of application, register it at the Supreme Court’s Probate Registry and for the Registrar to examine the affidavit and the supporting documentation and make the Grant. The Grant may be delayed if the Registrar issues requisitions (i.e. questions on any matters in relation to the will or the estate). If the estate is complex, or if any of the beneficiaries indicate that they want to make a claim or challenge the validity of the will, then obtaining the Grant and administering the estate may be delayed until all the issues are resolved to the Registrar’s satisfaction or the matter has been resolved by the Court.

The executor should get expert advice if an estate is complex involving the deceased’s businesses, partnerships, testamentary trusts, foreign assets. Those costs and the costs of the application for the grant of probate are borne by the estate and may remove some of the sting.

This article is provided for your information only. It does not constitute legal advice and is not intended by the author to do so. It should not be relied on as providing advice and you should obtain your own legal advice before acting on any information in the article.

  1.  1 Corinthians 15:55