Five Surprising Facts About Executors in the NT
Many people have heard the term “executor” and know that an executor is responsible for implementing a testator’s wishes in respect of their estate after their death. However, there are aspects of the executor role that are not as well-known. This article details five surprising facts about executors in the Northern Territory.
#1: Funeral arrangements by executors in the NT
After a loved one passes away, a major focus for the family is often planning the funeral. This is an occasion to celebrate the deceased’s life and accomplishments and say goodbye in an appropriate and cathartic fashion. Family members often have strongly held opinions about how the funeral and burial or cremation should proceed. It might therefore come as a shock to some families to discover that they do not have final say over the deceased’s funeral arrangements.
When a testator has appointed an executor in their will, that executor is the deceased’s personal representative, and has legal and administrative authority over all the deceased’s affairs. The executor can select the date, location and type of funeral service, and invite or prevent attendance as they see fit. The testator may have left burial or funeral instructions in their will, but the executor does not have to follow these non-binding instructions. The executor should, of course, consider the deceased’s will, and consult with the deceased’s family about the funeral arrangements. However, he or she can adjudicate any disputes and overrule the family if necessary. In fact, the executor may have to make totally different arrangements because of practical, financial or legal reasons.
There is an exception to the executor’s authority when it comes to cremation decisions. In the Northern Territory, the Cemeteries Act 1952 stipulates that any of the deceased’s next of kin can object to a cremation. For these purposes, a next of kin means the deceased’s de facto partner, spouse, and blood relative. If the next of kin objects, the deceased can only be cremated if he or she left an attested memorandum that explicitly expresses their desire to be cremated. Official personnel, such as the Director of Public Prosecutions, the Solicitor for the Northern Territory, a police officer and Justice of the Peace can also prevent a cremation with reasonable cause.
#2: Executors in the NT can overrule the will
An executor follows the testator’s instructions in the will as closely as possible. However, an executor can only do what is possible and lawful under state and federal law. This means that an executor can and must overrule the will when necessary. In essence, the executor has final say over how the deceased estate is distributed.
For instance, an executor has a fiduciary duty to protect the best interests of the beneficiaries of the estate, and this sometimes means making out-of-court settlements with creditors. In addition, eligible people can lodge family provision claims against the will if they feel that the testator unfairly excluded them or provided inadequate provision. In these cases, the executor is authorised to negotiate valid claims to avoid further delay and legal costs that would deplete the estate’s funds. Still, an executor must seek legal advice before overruling the terms of the will to protect themselves from personal liability.
The executor can also change the distribution of the estate with the beneficiaries’ consent. For instance, the beneficiaries can allow the executor to contravene the testator’s wishes and agree to a fairer redistribution of the deceased estate. The executor can formalise this type of alteration of the will through a deed of variation.
#3: Executors can sell bequeathed assets
Many people assume that bequests are sacrosanct, and their exact bequest in the will is what they will receive. Actually, because the executor can vary the terms of the will when necessary, he or she can sell a bequest to pay estate debt. For instance, a testator might leave their child a valuable piece of art, but the executor must sell the asset to discharge a tax liability. The executor will attempt to provide the deceased’s child with compensatory funds or a comparable asset. However, when the debts of the deceased estate are extensive, there may be little left over to give to the beneficiaries, regardless of the terms of the will.
#4: Executors in the NT take ownership of estate property
When an executor assumes authority over a deceased estate, they actually take legal ownership of the property in the estate. In the Northern Territory, section 52 of the Administration and Probate Act 1969 stipulates that real and personal estate vests in the executor as soon as they obtain a grant of representation. It is important to note that the property vests in the executor for the beneficiaries’ benefit, not for their own interests. Nevertheless, they are the legal owner until the property is transferred to the beneficiaries.
#5: An Executor Can Request Payment
When a testator selects an executor from family or friends, it is an honour that the executor accepts on a voluntary basis. However, it might be surprising to find that an executor can apply for recompense for their efforts on behalf of the estate. When the executor passes in their estate accounts, the Supreme Court of the Northern Territory can authorise a commission not exceeding 5% for the executor’s “pains and trouble” as is just and reasonable.
The team at Go To Court Lawyers can answer any questions you have about the rights and responsibilities of an executor in the Northern Territory. Please call 1300 636 846 or contact the team for experienced advice on any testamentary or probate matter.
