Is Being an Executor Difficult? (NSW)

Being named as an executor is a testament to the testator’s trust in the individual. Although an undoubted honour, there is no doubt that acting as an executor in New South Wales is a significant and time-consuming responsibility. Executors are tasked with administering the estate in accordance with the testator’s will and applicable laws, and this requires diligence, organisation and a clear understanding of the role. While the role can be rewarding, it often comes with challenges, including legal complexities, potential disputes, and administrative burdens. This article examines the role of an executor, and common difficulties involved in the administration of the estate in NSW.

Understanding the role of the executor

An executor is the person appointed in a will to carry out the wishes of the deceased and administer their estate. Because executors are frequently family members of the deceased, they often undertake the role while also managing their own personal grief. In such circumstances, it can be overwhelming to try and balance the emotional impact of the loss with the demands of the estate administration. This is one of the reasons that executors engage solicitors to assist them with these duties.

In NSW, the duties of an executor are governed by the Succession Act 2006 and common law principles.An executor has many responsibilities, though some estates require more administration than others. The primary responsibilities of an executor include:

1. finding the most recent will and making sure it is valid
2. protecting the assets during the administration period, which may mean obtaining insurance for real property

3. when necessary, applying to the Supreme Court for probate, which confirms the executor’s authority to act
4. identifying and assigning value to the deceased’s assets and debts, including any real estate, bank accounts, investments, and personal belongings
5. selling assets if this is required
6. settling the deceased’s outstanding debts, taxes, and liabilities,
7. and distributing the remaining estate to the beneficiaries as specified in the will.

An executor can take anywhere from a few months to several years to wrap up the deceased’s affairs, especially if there are complex assets to sell or legal disputes. In fact, one of the important duties of an executor is to defend the estate from legal claims and challenges. Although this is a relatively uncommon occurrence, every executor should be aware that challenges and contests may occur, and seek appropriate legal advice when necessary.

Legal duties

Executors owe fiduciary duties to the beneficiaries and the estate. This means they must act in good faith, avoid conflicts of interest, and manage the estate in the best interests of the beneficiaries. If an executor fails in this duty and causes harm to the estate or the beneficiaries, they can be held personally responsible for the loss. For example, an executor must not prematurely distribute bequests before settling all liabilities, otherwise they are opening themselves up to claims from creditors.

Challenges faced by executors

The role of executor can be demanding, with several potential challenges arising in the administration process. The most common legal obstacle faced by executors in NSW are family provision claims. These arise when someone close to the deceased believes that they were unfairly provided for in the will, delaying the administration process. Executors may sometimes encounter other legal disputes, such as challenges to the validity of the will. This is particularly likely if there are questions about the will maker’s testamentary capacity or allegations of undue influence. Ambiguous or poorly drafted clauses in the will can also create confusion, requiring legal advice or court intervention.

Administrative burden

Managing a deceased estate can be time-consuming and complex, particularly if the deceased left complex assets, such as trusts, companies, or overseas property. Another common reason for estate administration to be difficult or delayed is if the testator’s records are disorganised or incomplete, or if the executor must liaise with multiple financial institutions, legal professionals, and government agencies to administer the estate.

Since acting as an executor can be both difficult and time consuming, non-professionals have the option to ask for a commission from the estate to compensate for their “pains and trouble”. The court usually decides a “just and reasonable” rate based on the complexity of the will, the difficulty of the administration and the executor’s diligence in their role. The executor can only apply for this commission if they can supply the court with the estate’s financial accounts.

Resigning as executor

If someone has reservations about being an executor, they should renounce the role as soon as possible. It is much harder to sever ties with the estate once the executor has received probate and interceded with the estate. If necessary, an executor who is finding the role too difficult can ask the court to assign someone else to take over the administration of the estate. The court can also force the removal of an executor if they are struggling to finalise matters or not acting in the best interests of the estate and its beneficiaries.

Acting as an executor in NSW can be a highly challenging. Please contact Go To Court Lawyers on 1300 636 846 if you need help administering a deceased estate.