Executors (ACT)

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In the ACT, an executor of a will is empowered under the Administration and Probate Act 1929 to manage the deceased estate. A testator can employ a professional such as a lawyer or accountant to act as their executor or appoint a trusted friend or family member. An executor is tasked with safeguarding the assets of the estate during probate until they can be distributed to the beneficiaries. This article outlines the role of the executor of a will in the ACT.

Preliminary Duties Of Executors 

The executor must first obtain the deceased’s death certificate and make the appropriate preparations for the funeral. Executors should then apply for a Grant of Probate from the Supreme Court of the ACT. The duties the executor must undertake after these preliminary tasks depend on the testator’s wishes and the particular circumstances of the estate.

Other Duties

Being an executor involves considerable responsibility and the role should not be undertaken lightly. Regardless of whether an executor is a professional or layperson, they have a fiduciary duty to the deceased person. As such, they have a legally enforceable obligation to put the interests of the estate above their own interests.

The executor must focus on accounting for the estate’s assets and liabilities and safeguarding the deceased’s valuables. This may involve organising for necessary maintenance work to be done on a property, purchasing insurance for real estate, paying premiums, or even taking over a business enterprise to keep it in operation. They may also need to protect the estate against legal challenges or contests.

Once probate is granted, the executor can discharge the estate’s liabilities. They should contact an accountant to ensure that a final tax return is lodged and that any tax owing is paid. If the testator had a HECS-HELP debt, a final minimal payment will have to be made. Once debts are paid, the executor can distribute the residual estate as the testator wished.

Renouncing An Appointment As Executor

A person who is named as an executor in a will is not obliged to accept the role. It may be difficult to refuse someone’s last wishes, but not everyone can manage such a time-consuming and potentially onerous responsibility. It is in the interests of everyone if the executor is someone who has the time and skill set to manage the task.

If the named person does not want to take on the role of executor, they can engage the Public Trustee and Guardian to act for them, or legally renounce the role. It is important that they withdraw without commencing the executorship, as doing so is a tacit acceptance of the appointment, and abdicating responsibility after that point is not simple. Someone who is unsure whether they can act as an executor should urgently consult a lawyer about their particular circumstances. 

Multiple Executors Of A Will

It is wise to appoint more than one executor in a will, in case one of the nominees is unavailable. There is no limit to the number of executors that can be named in a will, but the Registrar of the Supreme Court will grant probate to a finite number of executors at once. If the testator has named more executors than permitted, then executors will be appointed in the order that they are listed on the will. 

Multiple executors can manage an estate together. It might be practical for the testator to appoint a professional, such as a solicitor, to complete the administrative duties of the estate, with a family member taking responsibility for the deceased's personal property and keeping the family informed during probate.

Where multiple persons are appointed as executors, they must act jointly when carrying out significant financial acts such as leasing, mortgaging or selling property, and for major administrative duties, such as defending the estate from challenge or contest. Each of the executors can carry out the smaller tasks of estate administration by themselves.

Expenses And Remuneration 

An executor may apply for reimbursement for the costs they incurred administering the estate. A professional is paid for taking on the responsibility, but a friend or family member typically accepts the position without pay.

Nevertheless, a testator does sometimes provide for the executor to be paid for their work, and occasionally a beneficiary wants to give the executor a financial reward.

The Administration and Probate Act 1929 also contains provision for an executor to receive a commission for their work, in a “just” amount.

Obligations Of Executors

An executor must abide by the testator's final wishes as closely as possible, as long as they are consistent with the law in the state or territory. They need to act expeditiously, in the estate's best interests, communicate regularly with beneficiaries, mediate disputes and defend the estate.

In the event that an executor breaches these statutory duties of care, they can be held responsible by the courts for any loss sustained by the estate. The courts will review the original Grant of Probate and hear the complaints, and remove the person if there is enough evidence of mismanagement. If a suitable person applies, the court can appoint them as administrator instead of the removed executor.

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