An executor is the person responsible for administering a deceased person’s estate. When a person (referred to as the testator) makes a Will, they will usually nominate at least one person as an executor. Under the Succession Act 1981 (Qld), the term “personal representative” is used, as it refers to both executors and administrators.
More information about making a Will in Queensland can be found in our dedicated article, Making a Will in Queensland.
Executor’s obligations in Queensland are numerous. They include gathering and maintaining the deceased’s assets, and ensuring all the estate’s outstanding debts and taxes are paid. The executor must distribute the deceased’s assets in the manner specified in their Will.
The rules regarding executor’s obligations in Queensland can be found in the Succession Act 1981 (Qld) . Other legislation which may also be relevant, depending on the circumstances, includes the Uniform Civil Procedure Rules 1999 (Qld), the Trusts Act 1973 (Qld), the Property Law Act 1974 (Qld) and the Land Title Act 1994 (Qld).
Executor’s obligations in Queensland generally
Section 52 of the Succession Act 1981 (Qld) sets out the main statutory duties and obligations for executors in Queensland. Primarily, executors are required to do the following:
- Collect and attend to the deceased’s real and personal estate which includes and administering it in accordance with the law;
- Provide a full inventory of the estate and render an account of their administration of the estate when required by the court;
- Deliver up the Grant of Probate or the Letters of Administration, when required by the court;
- Distribute the deceased’s estate, subject to the administration of the estate, as soon as practical; and
- Pay interest on any general legacies in the Will (at a rate of 8 per cent per annum).
An executor will also need to perform many other duties, which includes:
- Arranging the deceased’s funeral;
- Locating the Will and advising beneficiaries of their entitlements;
- Applying to the Supreme Court of Queensland for a Grant of Probate;
- Obtaining valuations of the testator’s assets;
- Maintaining and protecting the testator’s assets (preserving the estate);
- Finalising any of the estate’s debts or liabilities (including tax issues);
- Preparing financial statements;
- Transferring or selling assets;
- Defending the Will, if someone begins litigation against the estate.
More information on some of these duties is provided below. Please note that this is not a complete list of an executor’s duties as the testator could include additional obligations in their Will.
Executors and fiduciary duties
In addition to their duties under the Succession Act 1981 (Qld), an executor also holds a series of common law fiduciary duties in relation to the estate and the beneficiaries.
These fiduciary duties arise because an executor is in a position of significant trust and confidence, and therefore must follow a set of conduct rules (similar to a trustee of a trust). An executor’s primary duty is to act in the best interests of the estate at all times.
Unless the beneficiaries provide express written consent, an executor must not put themselves in a position where there is a conflict of interest (between their duties to the estate and their own personal interests). This extends to situations where there is only the possibility of a conflict of interest.
An executor also must not make a profit from their position. However, under section 68 of the Succession Act 1981 (Qld), the court may authorise payment of a commission (or other remuneration) to the executor for their services. The amount would be that which the court thinks fit and may come with conditions.
Severe penalties may apply if an executor breaches any of their fiduciary duties to the amounts that they are liable.
Obligations when there are multiple executors
If more than one executor is appointed, they must exercise their powers jointly under section 49 of the Succession Act 1981 (Qld). This means the executors will need to confer with each other and agree on courses of action regarding the estate’s administration.
When making their Will, the testator is free to nominate as many executors as they wish. However, the Supreme Court of Queensland will only grant probate to a maximum of four people at any one time. If a testator appointed more than four people as executor, they will be appointed in the order in which they are named in the Will (section 48).
Executors have an obligation to arrange for the disposal of the deceased’s body, which will often include organising a funeral or similar service.
While it is common for the deceased to include instructions regarding funeral arrangements in their Will, these instructions are not generally enforceable and an executor may choose not to follow them. However, if an executor is aware that the deceased has left signed instructions for their remains to be cremated, these instructions must be followed. This is required by section 7 of the Cremations Act 2003 (Qld).
An executor’s decision regarding disposal of the body is final, although they will usually discuss funeral arrangements with the deceased’s family. Particularly if there are religious or traditional customs which need to be observed.
Statutory protection for Executors
Section 44 of the Succession Act 1981 (Qld) provides some legal protections for executors who have begun distributing the estate.
For example, a person cannot bring an action against an executor for distributing part of the estate, if that distribution was properly made for the maintenance and support for the deceased’s dependent spouse or child. This applies even if the person notified the executor that they intended to bring an application against the estate.
An executor is also protected against claims regarding distribution of the estate if:
- The distribution was properly made (i.e. it is correct according to the Will); and
- It was made no earlier than six months after the deceased’s death, and the executor did not receive notice of an application (or intended application) against the estate; or
- If notice of an application was received – no earlier than nine months after the deceased’s death (unless the executor received written notice that the application had commenced in court).
Legal action against executors
The court may make orders against an executor who neglects to perform their statutory duties.
Section 52(2) of the Succession Act 1981 (Qld) allows a person who is aggrieved by the executor’s neglect (such as a beneficiary) to make an application to the court for orders. The court may make any orders it thinks fit, including an order for damages. The court can also order the executor to pay interest on any sums of money which have been in their hands, as well the costs the aggrieved person’s application.
If an executor wastes the estate’s property or converts any part of the estate to their own use, their legal liability continues after the executor’s own death. Under section 52A of the Succession Act 1981 (Qld), the former executor’s own personal representatives will, to the extent of the available assets, be liable for waste or conversion in the same manner as the former executor would have been.