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Executor Of Estate In Melbourne

In Melbourne, a testator typically includes a clause in his or her will appointing one or more executors to administrate the deceased estate. The executor takes control of the estate until such time as the valuables are distributed to the beneficiaries. The duties of the role vary according to the particular circumstances, but in every case, it is a position of considerable trust and responsibility. Although it is often considered an honour to be asked to act as executor, for some appointees it comes as an unwelcome surprise, or their circumstances have changed and they now have no choice but to renounce the responsibility. This article outlines the position of executor of an estate in Melbourne, with further specifics on the responsibilities involved in administrating an estate.

Choosing An Executor Of Estate In Melbourne

A testator usually chooses an executor from close friends or family members. However, a testator does have the option to appoint a professional such as a solicitor or even a professional executor. It is important to know that a professional will charge fees to the estate to undertake the duties of executorship.

It is always preferable for a testator to consult their chosen executor/s and secure their agreement before including their name in the will. While the testator has no legal obligation to inform their nominee, failing to do so might mean that the person is unable or unwilling to take on the appointment. 

Multiple Executors Of Estate In Melbourne

One way to compensate for this scenario is for the testator to name more than one prospective executor in their will. A testator can name any number of eligible executors in the hope that one of the people will accept the role in entirety, or that several executors will agree to jointly manage the executorship. A co-executorship made up of a professional and a family member can manage more significant tasks in tandem, including arranging the sale of real estate and legal defence of the estate. Each executor can handle smaller duties by themselves, assigned according to convenience and ability to easily discharge the task.

Renouncing Executorship In Melbourne

While it is an undoubted honour to be chosen as an executor, the named person is under no compulsion to accept. Sometimes the nominee is unwell or otherwise unavailable to assume the responsibility. In that case, as long as the named person has not already intermeddled (acted on behalf of the estate), they can renounce their appointment as executor. If the person has already begun their duties as executor, they cannot refuse to continue without the permission of the court. As such, if you are appointed as an executor and have doubts about whether you will be able to discharge all of the duties of the position, it is better for you to make a final decision before undertaking any of the duties of the office.

The Duties Of An Executor Of Estate In Melbourne

An executor in Melbourne will undertake any necessary preliminary tasks such as arranging the funeral, finding the will, informing the beneficiaries, safeguarding the assets of the estate, and liaising with insurance companies, creditors and financial institutions. Additionally, the executor may need to apply to the Supreme Court of Victoria for a Grant of Probate to acquire the authority to discharge the liabilities of the estate, complete a final tax return for the deceased, distribute the bequests and arrange any ongoing business such as testamentary trusts.

The executor must act not only in line with the testator’s wishes but also in accordance with the Administration and Probate Act 1958 . As such, the executor has a legal fiduciary duty to protect the interests of the estate beneficiaries. A fiduciary duty is one of loyalty, and it means that an executor must only act in the interest of the testator, the beneficiaries and the deceased estate.

Executorship requires good communication skills, and often also requires the ability to negotiate. It is important that there is regular and appropriate communication between the executor and all beneficiaries, creditors and legal authorities, and that the executor completes the administration of the estate without excessive delay.

Executor Of Estate Commission In Melbourne

Given the sometimes onerous nature of executor’s duties, there is scope for an executor to claim compensation for their effort. In Melbourne, the deceased estate will repay any of the executor’s costs and expenses incurred during the course of their duties. A testator or the beneficiaries of the will often give a gift to the executor in recognition of service, but there is another way to obtain payment. An executor who has completed a particularly time-consuming administration can apply to the court for an executor’s commission of no more than 5% of the total value of the estate.

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Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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