An executor must always keep his or her own money and affairs separate from those of the deceased estate. Once the Will has been located and the beneficiaries have been confirmed, the Executor must obtain probate of the last Will and Testament of the deceased. In addition, sorting out your affairs can be a very lengthy process if your estate: contains on-going trusts (that need to be maintained over time). NSW Trustee & Guardian are a government agency that specialise in wills and estates. Being an executor may involve: applying for the death certificate from the NSW Registry of Births, Deaths and Marriages What is Probate NSW? In … If you don't want to accept the role of executor, you can appoint NSW Trustee & Guardian to act as the executor for you. An Executor is someone who has been appointed by the Willmaker (also known as the Testator) to carry out the directions that have been laid out within the Will and administer the Estate. In the NSW case of Chick v Grosfeld (No 3) 1, the accountant executor sought to include over 50 hours of time for arranging the funeral. For example, in New South Wales it is an offence to cremate a body against the deceased’s written direction. medical negligence). An executor, who is also a beneficiary of an estate, is generally taken to receive their inheritance in lieu of an entitlement to commission. Can Your Solicitor be the Executor of Your Will? There will be some changes to our opening hours and payment dates during the holidays. Some Estates are sizeable and complicated and require the help of a professional legal practitioner to assist the Executor in fulfilling their duties. The funeral arrangements are typically carried out as per any instructions left by the deceased in the Will. Whether you have drafted a Will or are thinking of drafting a Will, the question of who you should appoint as your Executor is an important one. Trustee and Guardian charge for their services. For example, it is ill-advised to give your executor a right of residence to live in a property where the executor must make decisions about whether they are complying with any conditions. If the deceased has not left their Will in the custody of a professional, or in the care of a family member or friend, locating the Will could be a lengthy process that involves searching through the deceased’s personal possessions. Executor as claimant in an application for further provision. Anyone who wishes to make a claim against the Estate has twelve months to do so after the deceased’s date of death. When you make your Will, you need to appoint a person or organisation to administer your estate. notifying government agencies, utilities, financial institutions etc. The Executor can be an individual person or a … Identifyin… What happens to superannuation when I die? An executor may take on the role of trustee if there is a trust established by the Will When an executor has completed all of their duties, their role ends. We have experienced legal practitioners at Turnbull Hill Lawyers who can assist the Executor in relation to any such claim. Alternatively, one of the beneficiaries can apply to the court to become the administrator of the estate (Probate and Administration Act 1898, section 74). I contacted Turnbull Hill Lawyers in 2017 seeking legal representation. The Executor will be fully aware of any outstanding debts as part of the process they go through when applying for a Grant of Probate. Any costs or expenses incurred from the funeral are paid from the Estate, before any of the beneficiaries receive their share. In general, the role of the executor is to defend the interests of the beneficiaries under the provisions of the Will. The executor should contact any business or people providing ongoing services, such as telephone, electricity and insurance. You can choose a friend or relative, or appoint an independent trustee organisation like NSW Trustee & Guardian. When would a Court remove an executor? The Executor will still need to prove who they are in order to take full control of these assets and liabilities. The executor role becomes effective when you pass away. This person is known as the executor and their role is to carry out the instructions in your Will. In order to gain authority to carry out his duties, the Executor may apply to the courts of NSW. This field is for validation purposes and should be left unchanged. The Duties of an Executor when the deceased estate is located in NSW An Executor is someone who has been appointed by the Willmaker (also known as the Testator) to carry out the directions that have been laid out within the Will and administer the Estate. It is the right of all beneficiaries of a deceased estate located in NSW to receive their entitlement under the Will within 12 months of the deceased’s death (plus any interest as prescribed by the Court, if paid outside this 12 month period). This is particularly important when religious beliefs need to be respected. The Executor will need to determine who the beneficiaries are and if they are still alive. 2. The executor completes the legal documents and searches for the assets; or arranges for a lawyer or trustee company to do this. As executor, your role is to carry out the directions contained in the Will and legally … Care should be taken to ensure that the deceased’s wishes are carried out, and the Will should be checked for any specific directions. In NSW, if a Grant of Probate application is filed more than 6 months after the date of death of the deceased, a justification of the delay is required. The Executor can be an individual person or a trustee company. Duties of an Executor . Request an appointment to make or update your Will to appoint us as your executor. If the Will does not provide directions for disposing assets, the rules of intestacy will apply. It is important to note that any assets that the deceased held jointly with another party or person do not form part of the Estate and cannot be called in as part of the Estate. What is an executor? For example, if the deceased loaned money to a third party (debt recovery proceedings) or if the deceased’s death was a result of negligence (e.g. The Court has an inherent power to order the removal of executor who is 'unfit to act in such office'. Another responsibility that falls under the duties of an Executor is the prosecution of any claims the Executor may have against third parties, provided that the entitlement to pursue these claims did not cease upon death. An executor of a Will is the person nominated to take care of a deceased person's estate after they pass away. Our website uses an automatic service to translate our content into different languages. They were always available with answers which they communicated in language that the non-lawyer could understand. I would like to thank you and the team at Turnbull Hill Lawyers for your professional manner and time and efforts in resolving this matter. The role of executor includes collecting the estate assets, paying debts, and distributing the assets to the beneficiaries named in the Will. In addition, the Executor may also be required to lodge an income tax return on behalf of the Estate for the period of the Estate administration. The duties of an Executor include: 1. The executor can be a trusted friend or family member, an appointed professional such as a solicitor, or a trustee company. As an Executor in New South Wales (NSW), you will be required to arrange a funeral (burial or cremation) for the deceased. Probate is the legal process that proves the validity of a Will. The Executor organises to collect the assets of the deceased, pay any debts and distribute the estate assets to the beneficiaries as set out in the deceased’s Will. Generally, you will only be paid for your time spent as an executor if the will specifically says you should be. Most people engage a solicitor to help them obtain the Grant of Probate. The Executor will need to seek advice to determine what is considered to be fair market value before offloading the real estate. Due to the nature of the role, the Executor has strict duties that must be adhered to. Once probate has been granted, the Executor has the authority to deal with the assets and liabilities of the deceased’s Estate (that were listed in number 2). If the executor dies before the will-maker. distributing the estate assets and funds (this includes first ensuring all liabilities and expenses have been accounted for, paying legacies, transferring specific gifts, establishing any ongoing trusts and transferring or paying any remaining assets to the residuary beneficiaries). This process may involve organising the transfer of assets, such as property, from the deceased to the intended beneficiary. Also, it is not up to the Executor to determine whether a particular debt has priority over another debt. That said, you have the right to apply to the Supreme Court of NSW for commission regardless of what the will says. Generally, the Executor must administer the Estate and distribute all assets within 12 months of the deceased’s death. The executor can appoint the NSW Trustee & Guardian or a private trustee company to take their place. It is for this reason that Executors seek expert advice from experienced legal practitioners, like Turnbull Hill Lawyers, to ensure this does not occur. The list of duties outlined below provides information designed to help Executors fulfil their duties. the debts of the Estate. Executors are also required to locate the original Will and confirm the Will’s beneficiaries. The deceased ceases to hold an interest in those assets at the time of their death, with the surviving party or person taking over the deceased’s interest. While it is not necessary, the Executor should also seek agreement from the deceased’s family before finalising any funeral arrangements. When you make your Will, you need to appoint a person or organisation to administer your estate. I am an executor of a Will When a person makes a Will, they need to appoint someone to administer their estate – this person is known as the executor. Arranging the funeral and burial or cremation of the deceased. Answer: An executor of a will in NSW is the person or people named by a will-maker to carry out their final wishes. What happens if the time limit to contest proceedings has expired. Locating the deceased’s Will and obtaining a Death Certificate 3. It is important to consider that the Executor’s role, and his/her associated duties, will vary depending on the type of Estate. However, the Will can allow the Executor to delay the distribution of assets. making funeral arrangements (depending on family situation). Your main role as executor is to represent the person who has passed away and wrap up all of their personal, financial and legal affairs. An executor is the person appointed in a Will to carry out the wishes of a person after that person dies. These rules put the executor in a position of great responsibility, as he is the only defendant of the will. For more information about how to go about this please visit the ATO website or contact an accountant. If this occurs, the Executor must inform beneficiaries of any delay and provide a new revised expected date of receiving the entitlement. In South Australia, the Wills Act provides for an executor of a will to be a witness to it. Details of the death of the executor should be obtained as his or her certificate of death will need to be exhibited to an affidavit by the surviving executor or executors in any application for a grant of probate. Executor of Will in NSW If you have been named as an executor of a will in NSW and have never executed a will before, it can be difficult to know what your rights are. An executor or administrator is entitled to claim commission from the estate for their services. Renunciation. Finally, the Executor must distribute the Estate in accordance with the Will. These translations should be used as a guide only. When someone in NSW dies and leaves behind assets, those assets of the deceased, including real and personal property, are deemed vested in the NSW Trustee. I would highly recommend Turnbull Hill Lawyers and I would have no hesitation to use them again. An executor's many responsibilities require him to have access to the estate's funds, which sometimes can prove too much of a temptation for someone inclined to dishonesty. Please provide details regarding your matter so we can assist you. Avoid choosing an executor that you think will cause disagreements or disputes. Foster children bringing claims against estates, The McKenzie friend – S03E05 – Battle of Wills Video Series, The reading of the will – S03E03 – Battle of Wills Video Series, Bond, Administration Bond – S03E02 – Battle of Wills Video Series, Case Summary: Madison Ashton v Estate of the late Richard Pratt, Foster Child Receives $85,684 After Successfully Contesting a Will, Case Summary: Penninger v Penninger  NSWSC 892. The Executor is usually responsible for the disposal of the deceased’s body. However, where a Will establishes a trust or trusts within it, the person nominated as executor will often have to take on the role as trustee of those trusts.