Executors and Probate
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EXECUTORS
Our estate lawyers are able to assist you with all matters relating to executors and probate. When you make a Will, you will need to appoint an Executor. An Executor is a person who is responsible for the administration of your estate upon your death. They have a wide variety of tasks, and will usually be responsible for:
- Applying for a grant of probate;
- Liaising with your solicitor, banks and other institutions;
- Arranging your funeral;
- Looking after all of your assets, such as ensuring properties are maintained and insured;
- Notifying the beneficiaries of your death;
- Notifying banks, creditors and other agencies of your death;
- Discharge any debts of your estate;
- Arrange for tax returns to be prepared and lodged, or for other legalities to be finalised; and
- Distributing the estate to your beneficiaries.
WHO SHOULD I APPOINT AS EXECUTOR?
You can appoint anyone as your executor. There are several different types of executors, and the best executor for your estate usually depends on the nature and complexity of your estate. Most people appoint a friend or a family member, such as a child, to be their executor. The benefit of this is that, usually, this person will not charge your estate when acting as executor. The downside is that they may not have the legal knowledge required, and will often require the assistance of a solicitor as well. Another alternative is appointing your accountant or solicitor as your executor. They often have the legal knowledge required, and are less emotionally invested (making it easier for them to act in a way that is financially best for your beneficiaries.) They will usually charge a fee to act as executor.
You can also appoint more than one executor, up to a maximum of four executors. You can appoint your executors to act jointly or severally – this means they can make their decisions alone, or they must make decisions by agreement. If you believe it is likely that your Will may be complicated – such as the potential for someone to challenge the Will, because you have excluded someone from the Will, or if you have children from a previous relationship – it may be wise to consider engaging a professional executor, rather than a friend or family member. Our estate lawyers are give you advice about appointing an executor as well as all other matters regarding executors and probate.
TRUSTEES
If you establish a trust as part of your Will, you will need to consider appointing a trustee to manage and administer the trust. Usually, the trustee and the executor are the same person. Trusts can be created in several ways in your Will. Most commonly, a trust is created when you leave assets to a person under the age of 18. Sometimes, you can choose to establish a testamentary trust as part of your will. The trustee will be responsible for these trusts.
After the executor has dealt with the preliminary matters (such as your funeral, paying out debts of the estate, and notifying people and companies of your death), the executor either starts acting as trustee, or the trustee takes over. The trustee will hold the assets of your estate in trust (i.e. on behalf of your beneficiaries) until it is time to distribute or transfer those assets.
WHO SHOULD I APPOINT AS TRUSTEE?
The same considerations apply to appointing a trustee as apply to appointing an executor. Most often, a trustee and the executor will be the same person. However, trustees have additional duties and should be able to understand their responsibilities as trustee, as well as the ability to keep track of assets held in the trust separate to their own assets. They must invest the assets and distribute the income and capital in accordance with the Will, which can be complex.
GRANT OF PROBATE
A Grant of Probate is an official, legal document from the Supreme Court of Victoria that confirms that a Will is valid, and appoints the executor of the estate. Probate allows the executor to deal with the deceased person’s assets, and usually is required by banks and other institutions before they will consider transferring assets.
Probate should be applied for prior to the distribution of any part of the estate. A Grant of Probate can be applied for by any of the executors in the Will. It can also be applied for if there is no valid Will (by an appropriate person) or if there is a Will, but the executors cannot act (such as if they have died or are otherwise unable to act). If an estate is small, or most of the assets are held jointly with another person, a Grant of Probate is sometimes not required.