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Executor Of Estate In Canberra

In Canberra, when a testator makes a will, they also need to choose somebody to look after their affairs after they die. This person is known as an executor of the estate. The Administration and Probate Act 1929 vests an executor with the authority to administer an estate in line with the instructions contained in the testator’s will.  This article explains the responsibilities of an executor of estate in Canberra.

Choosing An Executor Of Estate In Canberra

A testator picks an executor to carry out their wishes and manage their estate. Many testators choose their husband, wife or de facto partner to manage their affairs, or another member of the family such as an adult child. Other testators decide that, on balance, it is better to employ a professional executor to take over the burden of administering the deceased estate.

Multiple Executors Of Estate In Canberra

The solicitors at Go To Court Lawyers will generally advise clients to name more than one executor in their will. This precaution accounts for several different scenarios, including an executor predeceasing the testator, or the executor no longer being in a position to take on the role. A testator is not limited in the number of executors they can name in their will, but they should specify if they wish the named executors to work together and list the executors in order of preference. The Probate Registrar of the Supreme Court of the ACT will only grant probate to a set number of executors at once. 

Joint Executors Of Estate In Canberra

One consequence of naming multiple executors in a will is that they can choose to work cooperatively in the best interests of the estate. Several people can work as joint executors, dividing the duties and sharing the responsibilities. In fact, a professional executor acting in concert with a family member of the deceased will be able to divide the duties between themselves in a practical and considerate manner.  In a joint executorship, both parties must agree on significant decisions, such as selling real estate and negotiating with claimants, but can finalise smaller administrative duties themselves on behalf of the partnership and the deceased estate.

Executor Of Estate Canberra: Renouncing Or Declining

While someone can only act as an executor of an estate if they are named in a will, the named person is not legally obliged to accept their appointment. Either the named executor can ask the Public Trustee and Guardian to step in on their behalf, or they can fully renounce the position. However, it is vital that the person makes a final decision before acting on behalf of the estate, as once they have tacitly accepted the responsibility by beginning to act, they cannot renounce without the permission of the Court.

One reason why it is sensible to choose a professional is because, depending on the size of the estate and the complexity of the testamentary instruction, acting as executor can be a burdensome duty. If the executor fails to live up to his or her duty of care, the Court can hold them personally responsible for any financial loss.

What Does An Executor Of Estate Do?

The executor of estate in Canberra is responsible for communicating and negotiating with all parties, clearing any debt, defending the estate from legal contest and challenge, and safeguarding assets until they can be given to the rightful beneficiaries.

The executor takes their cues from the testator’s instructions in the will. There are a few instances when an executor will deviate from the written wishes of the deceased, such as when the instructions are contrary to state or federal law, when it is impossible to carry out (for instance, if a bequest must be sold to pay debts of the estate), or the court orders a different distribution because of a successful claim against the estate.

The responsibilities and duties of an executor in Canberra differ according to the specific case, but amongst other tasks, an executor may need to:

  1. Notify the beneficiaries of the will;
  2. Apply for authority to administer the estate;
  3. Look after the estate;
  4. Value the estate;
  5. File a final tax return;
  6. Pay the surviving liabilities of the estate;
  7. Divide the estate according to the testator’s wishes; and
  8. Establish testamentary trusts as required.

Executor Of Estate Canberra: Commission

All the executor’s costs are paid upfront by the estate, or reimbursed from the estate before any other payments are defrayed. A professional executor will also be paid a standard fee to administer the estate. A family member or close friend typically agrees to accept the responsibility without expectation of payment, but depending on the complexity of the task, even a volunteer executor can apply to the Supreme Court for a “just” amount of executor’s commission.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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