I would like to thank you and the team at Turnbull Hill Lawyers for your professional manner and time and efforts in resolving this matter. What is your role as an executor? Another responsibility that falls under the duties of an Executor is the prosecution of any claims the Executor may have against third parties, provided that the entitlement to pursue these claims did not cease upon death. You can choose a friend or relative, or appoint an independent trustee organisation like NSW Trustee & Guardian. When you make your Will, you need to appoint a person or organisation to administer your estate. If the instituted executor named in the will does not want to act they can file a Renunciation of Probate form with the Supreme Court of NSW. The executor role becomes effective when you pass away. The Executor is usually responsible for the disposal of the deceased’s body. The Executor will be fully aware of any outstanding debts as part of the process they go through when applying for a Grant of Probate. An executor is the person who handles a deceased person's estate, making sure all property is distributed according to the decedent's wishes and that all debts are paid. The charging clause was limited to professional work only. a responsible and competent executor. Can an executor sell the property of a deceased estate? Regardless of whether the Estate is insolvent or solvent there are expenses that must be paid before any debts. In addition, sorting out your affairs can be a very lengthy process if your estate: contains on-going trusts (that need to be maintained over time). The court usually will not award you any … We would not hesitate in recommending your company. For example, if the Executor fails to administer the Estate in the required time limit, resulting in a reduction of the Estate assets, the Executor may be held personally liable by a beneficiary or creditor for that reduction. As an Executor in New South Wales (NSW), you will be required to arrange a funeral (burial or cremation) for the deceased. Put simply, this involves making sure their debts are paid and that their assets and possessions go where the deceased wanted them to. An executor is the person appointed in a Will to carry out the wishes of a person after that person dies. An Executor is someone who has been appointed by the Willmaker (also known as the Testator) to carry out the directions that have been laid out within the Will and administer the Estate. Any costs or expenses incurred from the funeral are paid from the Estate, before any of the beneficiaries receive their share. It is important to consider that the Executor’s role, and his/her associated duties, will vary depending on the type of Estate. This means the Executor must ensure the assets are not wasted due to their own action or inaction. Avoid putting your executors into conflict by the terms of your will. 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. We pay respect to the Traditional Custodians and First Peoples of NSW, and acknowledge their continued connection to their country and culture. What is an executor? This person is known as the executor and their role is to carry out the instructions in your Will. It is important to note that any assets that the deceased held jointly with another party or person do not form part of the Estate and cannot be called in as part of the Estate. The Executor will need to determine who the beneficiaries are and if they are still alive. distributing the estate assets and funds (this includes first ensuring all liabilities and expenses have been accounted for, paying legacies, transferring specific gifts, establishing any ongoing trusts and transferring or paying any remaining assets to the residuary beneficiaries). For example, if the deceased loaned money to a third party (debt recovery proceedings) or if the deceased’s death was a result of negligence (e.g. It is the Executor’s responsibility to preserve the assets listed as part of the Estate from waste. However, the Will can allow the Executor to delay the distribution of assets. Nominating an executor can a difficult choice but anyone over the age of 18 is legally allowed to be the executor if they have the mental capacity to do so. Finally, the Executor must distribute the Estate in accordance with the Will. Being an executor may involve: applying for the death certificate from the NSW Registry of Births, Deaths and Marriages I am an executor of a Will When a person makes a Will, they need to appoint someone to administer their estate – this person is known as the executor. The Executor can be an individual person or a trustee company. Death of one of the executors. Request an appointment to make or update your Will to appoint us as your executor. Automatic language translation The Executor will still need to prove who they are in order to take full control of these assets and liabilities. The Executor may need to lodge an income tax return on behalf of the deceased. Please note that the NSW Trustee and Guardian, if appointed as your executor, is entitled to charge for administering an estate with reference to a different and generally much higher scale of fees. For more information about how to go about this please visit the ATO website or contact an accountant. An executor, who is also a beneficiary of an estate, is generally taken to receive their inheritance in lieu of an entitlement to commission. Some Estates are sizeable and complicated and require the help of a professional legal practitioner to assist the Executor in fulfilling their duties. Locating the deceased’s Will and obtaining a Death Certificate 3. Once the Estate’s assets have been called in and all claims have been prosecuted, the Executor will need to pay off all the deceased’s outstanding debts, i.e. Superannuation also does not form part of the Estate. This is particularly important when religious beliefs need to be respected. When you make your Will, you need to appoint a person or organisation to administer your estate. This enables debts and liabilities, such as outstanding tax and administrations costs, to be paid off prior to directing money to beneficiaries. I contacted Turnbull Hill Lawyers in 2017 seeking legal representation. When someone in NSW dies and leaves behind assets, those assets of the deceased, including real and personal property, are deemed vested in the NSW Trustee. Generally, the Executor must administer the Estate and distribute all assets within 12 months of the deceased’s death. In NSW, if a Grant of Probate application is filed more than 6 months after the date of death of the deceased, a justification of the delay is required. Care should be taken to ensure that the deceased’s wishes are carried out, and the Will should be checked for any specific directions. making funeral arrangements (depending on family situation). Trustee and Guardian charge for their services. Our website uses an automatic service to translate our content into different languages. For example, it would be unreasonable for the Executor to plan an extravagant funeral when the Estate is small. Generally, you will only be paid for your time spent as an executor if the will specifically says you should be. Alternatively, one of the beneficiaries can apply to the court to become the administrator of the estate (Probate and Administration Act 1898, section 74). Executors are also required to locate the original Will and confirm the Will’s beneficiaries. Receive NSW Trustee & Guardian news and events straight to your inbox. providing am accounting report of all administration activities to the beneficiaries. If one of two or more executors has died, the surviving executor or executors are entitled to act. This is absolutely essential where the executor is also a beneficiary under the Estate. What is Probate NSW? Similarly, an executor cannot be removed from that position by, for example, a disgruntled beneficiary without Court approval. If you don't want to accept the role of executor, you can appoint NSW Trustee & Guardian to act as the executor for you. That said, you have the right to apply to the Supreme Court of NSW for commission regardless of what the will says. As the next of kin, relative or close friend of the deceased, you may need to apply to the Supreme Court of NSW for letters of administration to distribute the deceased’s estate. These costs must be reasonable. If the Will does not provide directions for disposing assets, the rules of intestacy will apply. The Executor is in a position of trust, personally chosen by the will maker to fulfill their wishes, maximise the estate and act in the best interests of the beneficiaries. These include those associated with the funeral, the testamentary process (probate) and administration (including legal fees). Many people see it as a compliment to appoint a relative or close friend as their executor, but finalising your affairs while they’re grieving can be overwhelming and challenging. There will be some changes to our opening hours and payment dates during the holidays, after probate, preparing account and tax information for beneficiaries and paying liabilities (, Information about financial management orders, Information for private financial managers, Request a review of a financial management order. However, where a Will establishes a trust or trusts within it, the person nominated as executor will often have to take on the role as trustee of those trusts. The executor can be a trusted friend or family member, an appointed professional such as a solicitor, or a trustee company. The executor of a will is responsible for seeing that the terms of the will are carried out. The executor should also have regard to any wishes of the deceased as set out in the Will, although in NSW the deceased cannot dictate what is to happen to their body, as ultimately this is a responsibility of the executor. the debts of the Estate. Turnbull Hill Lawyers were an amazing team to work with. Identifyin… For example, in New South Wales it is an offence to cremate a body against the deceased’s written direction. What happens to superannuation when I die? An executor cannot claim commission if they are also named as a beneficiary in the will unless the will specifically entitles the executor to claim commission in addition to their share. Please provide details regarding your matter so we can assist you. When someone dies, an executor is the person appointed by the will to administer the estate. Once the Will has been located and the beneficiaries have been confirmed, the Executor must obtain probate of the last Will and Testament of the deceased. The executor doesn't want to act. While it is not necessary, the Executor should also seek agreement from the deceased’s family before finalising any funeral arrangements. As executor, your role is to carry out the directions contained in the Will and legally … The charging clause was limited to professional work only. notifying government agencies, utilities, financial institutions etc. In … 2. In general, the role of the executor is to defend the interests of the beneficiaries under the provisions of the Will. The amount they charge depends on how complex the estate is and what services you are asking for. It is for this reason that Executors seek expert advice from experienced legal practitioners, like Turnbull Hill Lawyers, to ensure this does not occur. The funeral arrangements are typically carried out as per any instructions left by the deceased in the Will. When would a Court remove an executor? This field is for validation purposes and should be left unchanged. Courts are often reluctant to remove an executor without strong grounds. The executor is the person appointed in a deceased person's will to manage her estate and distribute assets to the will's beneficiaries. Avoid choosing an executor that you think will cause disagreements or disputes. The Executor will also need to identify the assets and liabilities listed as part of the Estate. For example, if the Estate includes real estate that needs to be sold, the real estate must be sold for a price that is regarded as fair market value. Executor of Will 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. However, the Executor will be given access to the deceased’s bank account in order to cover the funeral costs and expenses, and any court fees related to acquiring the Grant of Probate. Whether you have drafted a Will or are thinking of drafting a Will, the question of who you should appoint as your Executor is an important one. 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