Duties of the executor
The broad duties of an executor are to dispose of the body and arrange a funeral; collect the deceased’s assets; attend to the payment of all the deceased’s debts and administration expenses, and to distribute the estate in accordance with the will and the law. Executors should be aware of the fact that they are subject to a number of additional duties, a selection of which are set out further below.
The comments in this section apply equally to an executor, being the person named in a will to administer the estate, and to an administrator, being the person appointed by the court to administer the estate if there is no will or the will does not contain the valid appointment of an executor.
- What happens if there is more than one executor or administrator appointed?
A will may appoint multiple executors however, a grant of probate will only be made to the first four named executors who accept the appointment. Where a will appoints more than one executor, the executors must exercise their powers jointly.
- What happens if an executor fails to meet their duties?
Where an executor fails to meet their duties, they may be subject to an order for damages, interest, costs and/or removal from their position.
- Collecting the assets of the deceased
It is often necessary for an executor to obtain a grant of probate before being able to collect many of the assets in the estate.
An executor will be responsible for not only collecting in the assets of the estate, but also any moneys owing to the estate.
An executor may be personally liable for the debts of the deceased and those incurred during administration. To ensure that all debts are duly paid (and all personal liability avoided), it is advisable for an executor to advertise for creditors and attend to their payment as soon as possible.
- Exhibit inventory of the estate and render accounts
It is the executor’s duty to file full and correct accounts in the approved form, and verified by affidavit, where a beneficiary has sought an order from the court for these accounts.
In practice, an executor should comply with any such request without an order needing to be made.
- Duty to pay interest
If any legacies remain unpaid after one year of the deceased’s death, an executor must pay legacy interest to those beneficiaries until the legacy is paid.
- Duty to formally identify the beneficiaries
Prior to making any distributions of the estate, the executor must be satisfied that the will clearly identifies the beneficiaries and that the individual/s to whom distributions are to be made are the same individual/s listed in the will as a beneficiary. An executor may be personally liable for any payments made to the wrong beneficiary.
A formal identification of the beneficiaries may not be necessary where they are personally known to the executor. However, where the executor does not know the beneficiaries, a statutory declaration and proof of identity should be requested to confirm the beneficiaries’ identity.
- What if a beneficiary is bankrupt?
Prior to making a distribution of the estate, an executor must ensure that the beneficiary is not an undischarged bankrupt. Where a beneficiary is an undischarged bankrupt the Official Trustee is entitled to that beneficiary’s interest in the estate under Section 116 Bankruptcy Act 1966.
Thus, it is prudent for an executor to conduct bankruptcy searches prior to making distributions to a beneficiary.
- What should an executor do about a missing beneficiary?
There are many options open to an executor in such a situation and further legal advice should be sought about these options. It is not open to an executor to ignore a beneficiary who cannot be located.
Section 115 Trusts Act 1973 provides that the costs, expenses, and charges incurred by an executor in attempting to locate a beneficiary are to be paid out of that beneficiary’s interest in the estate.
- What rights does a beneficiary have during administration of the estate?
During the administration phase of the estate, a beneficiary does not have a proprietary right to any asset, but rather a right to the due administration of the estate.