Have you been named as the executor of an estate? People
generally appoint someone who they consider trustworthy to carry
out the very important task of distributing their assets in
accordance with their Will and so at first, it can seem like an
However, the perceived honour comes with an array of
responsibilities, deadlines, family issues (particularly where a
blended family or family business is involved) and even the risk of
being personally liable.
Here are five common mistakes executors should avoid:
Failing to identify all of the assets of an
In NSW, an application for a grant of Probate should be made
within 6 months from the date of death. Applications lodged out of
time will require an explanation to the Court by way of affidavit.
The Court is quite generous in granting leave to apply out of time
if legitimate reasons, such as difficulty identifying estate
assets, have caused the delay.
Many executors make the mistake of moving too quickly in
applying for a Grant and overlook assets which later need to be
disclosed to the Court. This can cost the estate time and money and
could potentially expose the executor to liability if creditors or
beneficiaries are adversely affected by the original oversight.
Distributing the estate too early
Executors should administer an estate in a timely manner, aiming
to complete administration of an estate within 12 months from the
date of death ('the executor's year'). This may not
always be possible, particularly where there are complex taxation
issues to address. For example, lifetime tax returns for the
deceased or if the estate has received income, returns for the
estate may need to be prepared. If property is sold, capital gains
tax may be a large liability which the executor will need to
If the executor distributes the estate too soon without holding
back sufficient funds to cover any taxation liabilities, recouping
funds from beneficiaries, particularly if they are overseas,
uncooperative or have already spent their inheritance, may be a
On the flip side, delaying the administration of an estate can
cause an executor to come under fire by impatient creditors and
beneficiaries, costing the estate unnecessary expense.
Beneficiaries may be entitled to interest once the executor's
year passes. An executor who doesn't administer an estate in a
timely manner or who generally doesn't act in the interests of
the beneficiaries, may be at risk of personal liability or could be
removed from office.
A recent Victorian case, Denby v Power & Anor  VSC
535, is a reminder that executors can be removed from office
if they have a conflict of interest or don't act in the
interests of the estate.
Poor management of beneficiaries'
Executors often make the mistake of keeping beneficiaries in the
dark or making unrealistic promises to them. Impatient
beneficiaries may become suspicious, or if executors don't
deliver on promises because they have underestimated time frames or
overestimated the net value of assets, beneficiaries can be
disappointed and become difficult.
It's important for executors to keep an open dialogue with
beneficiaries and to manage their expectations as well as possible
without creating too much expense for the estate (for instance, if
there is frequent contact between a beneficiary and the
Failing to keep proper records
Beneficiaries are entitled to full and proper accounting so
executors should ensure that they keep a proper record of the
expenses of the estate. This is particularly important if an
executor is claiming reimbursement for expenses which the executor
has personally met (such as funeral costs, court filing fees,
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The person named as an executor in the deceased's will has the right to arrange for the burial of the deceased's body.
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