Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Being Named an Executor in NSW: Your Rights and Responsibilities
Being named an executor in NSW is a privilege that comes with myriad rights and responsibilities.
While some people may name a solicitor or trustee as their executor, most people will name a trusted friend or family member.
The role of executor involves financial, legal and interpersonal skills, and if you are named as the executor to someone’s will, it is vital to understand your rights and responsibilities. This will ensure that you execute the will according to the deceased’s wishes while also protecting yourself legally and financially.
Executor Rights in NSW
If you have been named as an executor of a will in NSW and have never executed a will before, it can be difficult to know what your rights are.
Particularly at a time when you may be grieving the death of a loved one, it can be challenging to navigate the legal and financial implications of such an important job.
There are several common questions that arise concerning executor rights in NSW.
Will I Be Paid For My Role as an Executor?
Taking on the role of executor can be a time consuming and emotionally draining task, one for which you will generally not be paid.
In some instances, the executor may be compensated for their time if the will specifically states this. Regardless of what the will says, if you are the named executor, you do have the right to apply to the Supreme Court of NSW for commission.
However, if you are named as a beneficiary of the will, the court will usually rule against any additional payment.
Can I Refuse to Be The Executor of an Estate?
While sometimes a will-maker informs their desired executor ahead of time, more often than not, when people find out they have been named as an executor, it comes as a complete shock.
In such situations, the named executor may, for one of several reasons, not feel up to the role and may be wondering if they can refuse to be the executor of the estate.
Any person named as an executor in NSW is not legally bound and can choose to renounce their appointment.
If you are named as an executor and would prefer not to take on the role, you can give up your right to obtain probate by filing a renunciation with the registry.
You can then appoint the NSW Trustee and Guardian or a private trustee company, solicitor, or accountant to take your place.
If you decide this is the road you would like to go down, it is always advisable to obtain advice from an experienced wills and estate lawyer.
If, however, you decide you are happy to take on the role of executor, the following responsibilities are applicable.
What Are My Responsibilities as An Executor?
As the executor of a will, there are several responsibilities you carry along with very specific steps you will need to take to administer the estate in question. Every estate will differ slightly according to several factors.
An estate is usually administered and distributed according to the deceased’s wishes. These are commonly detailed in the deceased’s will.
In cases where the deceased passes away without a will or the will is found to be invalid, the estate will be distributed according to the law set out by the particular state or territory in which the deceased lived.
In your role as an executor, you will need to carry out several steps to administer the estate including organising the funeral, obtaining probate and ultimately distributing the assets under the estate.
It is also your responsibility during the administering of the estate to protect the assets under the estate. This may include keeping stocks responsibly invested and ensuring the deceased’s property and business interests are protected.
As an executor, it is crucial to keep proper records and receipts in the administering of the will. This will both protect you should any challenges to the will arise and ensure you are reimbursed for any out of pocket costs.
Do I Need to Arrange the Funeral?
Unless otherwise stated, one of the first and most personal roles of an executor in NSW is to organise funeral arrangements, the specifics of which will usually be detailed in the will or other personal documents.
Not following these wishes can, in extreme cases, have legal repercussions, especially if the deceased had particular religious or spiritual beliefs.
After arranging for the funeral, you will then move onto to the legal and financial obligations involved in your executorship.
What is the First Step I need to Take as An Executor in NSW?
The first administerial step you will need to take in your role as executor is to make a detailed list of the deceased’s assets and debts along with any payments they may owe or be due.
This is known as an inventory of property and generally includes:
- The deceased’s family home
- Any other real estate, including holiday houses and investment properties
- Vehicles including cars and motorbikes
- Savings held in the deceased’s bank accounts
- Household furniture and appliances
- Jewellery and antiques
- Shares, stocks and other investments
- Any existing insurance policies
Once you have a thorough inventory of the assets under the estate, you will then apply to the Supreme Court for a Grant of Probate.
How Do I Apply For Probate in NSW?
Probate is essentially an order from the supreme court that states a will to be valid and that the executor has the right to move forward and administer the estate.
For an executor in NSW, the first step in applying for probate is to publish your intention to do so on the NSW Supreme court website. After waiting 14 days, you then apply for probate by lodging the following documents with the NSW Probate Registry of the Supreme Court:
- The will-maker’s Death certificate
- The inventory of property
- An executor’s affidavit
- The original will
After gaining probate, you can then prepare a distribution report.
This details the particulars of the assets and debts under the estate.
You can now move forward in distributing the estate in line with the will. Each beneficiary should receive a copy of the distribution report when they receive their share of the estate.
Does an Executor Need to Defend the Estate?
Sometimes, in the administering of an estate, an interested party may make a challenge to a will.
In these cases, it is usually considered the executor’s job to defend the estate.
Such cases often involve complicated legal issues, and if you find yourself in such a position, you should seek the advice of an experienced lawyer.