It can be a daunting task to deal with a deceased person’s money and property once they pass away. If you have been appointed as an executor of a will, it is important to know the expectations placed on you to distribute the estate correctly and what the penalties may be for failing to carry out your duties.
How to determine who has been appointed as an executor
You may have been advised that you had been appointed to act as an executor of someone’s will once they pass away. It is generally advised that a will maker advise the person/s who they intend to act as an executor. If you have been appointed as the deceased’s executor, the first step is to obtain a copy of the deceased’s last will.
Having a copy of the deceased’s latest will not only confirms you have been appointed to act as an executor, but also clarifies:
- if any other person has been appointed as an executor and whether you must act together;
- the powers the will maker has left you to administer their estate; and
- who is intended to benefit from the deceased’s estate.
1. Before distributing the estate
Your ability to act as an executor of a will may require recognition of the court before you are able to distribute the estate assets. Before you can distribute a deceased’s estate, you will be required to:
- make funeral arrangements for the deceased – the deceased’s will may provides terms for the funeral arrangements. Furthermore, if the deceased states they wish to be cremated, these instructions must be followed as required by section 7 of the Cremations Act 2003 (Qld);
- notify any government agency the deceased was receiving a pension or other benefit from of the deceased’s death. If pension payments are continued to be made after death, the agency may recover this as a debt;
- compile a list of the deceased’s assets and in order to distribute to the beneficiaries;
- if an asset holder requires a grant of probate, obtain a grant of probate from the Queensland Supreme Court – generally most financial institutions require a copy of the grant of probate before releasing the deceased bank account profits to you.
If you are required to obtain a grant of probate, you will need to publish a notice of intention to apply for grant of probate. This will give a 2 week period of time for any potential creditor to notify of a debt payable by the deceased and/or any law firm holding a later will to notify the applicant that they hold such document. In the event that there is a later will the general procedure is for the latest will directions to be followed and lodged for probate, so long as the will maker was deemed to have the mental capacity to make the later will.
2. After Grant of Probate has issued
An executor should wait at least 6 months from the court issuing a grant of probate before distributing the estate. This is to protect the executor in case any claims are made against the estate. If an executor does distribute the estate before 6 months and a claim on the will is made, the executor may become personally liable for distributing the funds.
Once a grant of probate has been issued, an executor should:
- notify all beneficiaries that they are a beneficiary listed in the will and provide them with a copy of the will if they are a residuary beneficiary (as they are entitled to know what benefit they will receive);
- maintain and update a list of the deceased’s assets and debts (as any beneficiary may request a copy of this statement);
Once 6 months has passed and no claim has been made to the court against the estate, then the executor may:
- collect and/or sell the deceased’s assets as required;
- pay out the deceased’s debts (this should be done before paying the beneficiaries);
- distribute the specific gifts listed in the deceased’s will;
- distribute the balance of the estate (the residue) in accordance with the will; and
- lodge a tax return on behalf of the estate.
It is possible that a will may give an ongoing obligation to the executor. This is most common where a guardian is appointed to take care of a minor child until they reach 18 years of age. It may also occur where the executor is required to hold a gift for someone on trust until the beneficiary meets certain conditions.
3. Executor Commission
An Executor may be entitled to claim reimbursement for any costs or expenses associated with administering the estate. The will may make provision for the executor’s ability to claim reimbursement, or else the court will decide what is reasonable reimbursement costs.
What if there is no Will?
If the deceased left no will, then they are considered to have died intestate. Queensland laws provide a list of priority for who can apply to act to administer the deceased’s estate and who is entitled to receive a benefit from the estate. By applying for Letters of Administration, the administrator will have similar duties as an executor would have had if a will had been made.
What if executor acts inappropriately ?
If the executor acts inappropriately (for example not providing a list of estate assets and liabilities when requested by a beneficiary) then the beneficiary can make a claim against them in the Supreme Court. It is therefore vital that the executor complies with the above process and acts in the interest of the estate (rather than their own interest) in order to avoid any court claim against them.
If you have any questions or require assistance with drafting or updating your will or administering an estate in Queensland, please contact the property team at My Property Protect for more information.
Kayleigh Swift, Associate
Chloe Skubis, Graduate Law Clerk
About the authors
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
Chloe Skubis is a Graduate Law Clerk in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.