Can A Beneficiary Be An Executor Of A Will In Australia?

"Can a beneficiary be an executor of Will in Australia?" There's nothing in Australian law that disqualifies a beneficiary from being an executor of a Will. The Succession Act 2006 is the governing law in Australia when it comes to the topic of beneficiaries and executors of Wills.

Under the Succession Act 2006, an executor is termed as a "personal representative." Section 3 provides that "apersonal representative means the executor or administrator of the deceased estate of a deceased person."

The law does not say much about the qualifications of the personal representative. However, it specifies that the main role of an executor is to administer the things owned and owed by the decedent.

Qualifications of an Executor of a Will in Australia

Let's look at the qualifications of an executor of a Will in Australia:

1. The person appointed must be of legal age and of sound mind.
2. They must have the necessary skills and knowledge to administer the deceased estate.
3. They must be able to handle complex legal and financial affairs.
4. Consider any conflict of interest when appointing your executor.
5. Willingness of an executor to take the role.
6. You can also choose to appoint a Public Trustee.

The law does not specify whether a beneficiary can serve as executor of a Will or not. Since the law does not expressly prohibit it, such an appointment is allowed.

What Should an Executor of a Will in Australia Do?

If you're a beneficiary of a Will and you've just been appointed as an executor, here's a list of important things that you should do:

First, find the Will of the deceased person. This is important because the deceased person's Will might include information such as funeral arrangements. The will may either be at their home, with their bank, with their solicitor, with the Supreme Court of NSW, or with NSW Trustee and Guardian.

Second, plan the funeral and arrange the burial or cremation.

Third, apply for a death certificate. This is important in administering a Will. The request for a death certificate of the deceased will take up to one week and will cost you AUD 67 which includes AUD 11 postage and handling. If it's for international post, you might need to add a further AUD 9.

Lastly, find and notify the beneficiaries. This is also important because the beneficiaries need to comply with certain tax obligations.

Furthermore, you need to find, protect, and list the remaining assets and outstanding debts. One of the main roles of an executor is to protect the assets and debts of the deceased. That's why they must perform an inventory of these properties.

Additionally, you have to notify relevant organisations of the fact of death. These organisations include banks, financial institutions, and government agencies. This will make sure that debts will not continue and income, such as pensions, is stopped. Seek help from the Australian Death Notification Service (ADNS) so they can assist you in notifying these agencies.

Estate Administration Process

Now, you will proceed to the estate administration process. First, apply for a grant of probate. As an executor, it is your duty to apply for a grant of probate within 6 months after the death of the testator.

Second, collect assets and pay debts. When the Court grants the probate, you can start collecting assets and paying debts. Afterwards, the distribution to the beneficiaries of the remaining portion of the estate may be proceed.

Third, distribute assets to beneficiaries. The law provides that "an executor shouldn't distribute an estate any earlier than 6 months after the date of death (and 30 days after a 'Notice of Intention to Distribute' is published)."

Finally, sort out taxes. At this point, here's what you may need to do:

1. Submit tax returns on behalf of the estate;
2. Declare the assets you receive as part of your own tax return
3. Cooperate with family members if a testamentary trust is established in the Will.

What Should an Executor Do If There's a Will Dispute?

If someone contested the Will, your role as a nominated executor must include the following:

1. Freeze the assets when notified of a dispute to avoid personal liability for misapplication.
2. Be transparent about the dispute but remain neutral.
3. Mediate the dispute. Before you even think about making a family provision claim, you could try to mediate the dispute. Mediation is voluntary and is a way to resolve disputes without going to court.
4. Keep records of all communications, valuations, and expenses.
5. Keep beneficiaries informed to reduce mistrust.
6. See a probate lawyer early to navigate the dispute while fulfilling your fiduciary duties.

Executor-Beneficiary Conflict: Conflict-Resolution Strategies

In the event that executor-beneficiary conflict arises, there are strategies that will help resolve these issues:

1. Communicate with the beneficiaries. Executors should keep beneficiaries informed about the administration process and decisions being made and why. Lack of transparency is a common trigger for suspicion and conflict.
2. An executor must be impartial. Executors must not show favouritism or self-interest, especially if they are also beneficiaries. They have a fiduciary duty to act in the best interests of all beneficiaries and the estate as a whole.
3. Keep a record of everything. This includes all actions, communications, and decisions. This will be crucial if things get ugly.
4. Consider mediation. Before going to court, mediation should be considered. A neutral third party can help resolve misunderstandings or disputes in a less adversarial way, saving time and money.
5. Seek legal advice from wills and estate lawyers. Executors should get legal advice early in the dispute to understand their duties, the rights of beneficiaries, and what to do. This is most important if there are allegations of mismanagement or conflict of interest.

How Can Wills and Estate Lawyers Help?

Will disputes can eat into the value of the estate through legal fees, forced sales of assets and delay in distribution.

In some cases the courts have removed executors and appointed independent administrators to sort out the mess after finding that communication and impartiality were lacking. That's whyJB Solicitors is here for you. Seeking legal advice from wills and estate lawyers will help resolve Will disputes.

Our Services

If you ever need help in managing your assets, we offer the following services:

1. Estate Planning includes creating Wills, setting up testamentary trusts, giving advice on how superannuation accounts are dealt with, providing strategies to protect assets from risks, and business succession planning.
2. Estate Disputes and Litigation includes contesting and defending a Will, handling other estate disputes including disputes between beneficiaries, interpreting Will clauses or breaches of trust, and resolving disputes outside of court through negotiation or mediation to avoid costly and lengthy litigation.
3. Estate Administration includes assisting executors in applying to the Supreme Court of NSW for a Grant of Probate, applying for Letters of Administration when someone dies without a valid will (intestacy), and guiding executors or administrators through the entire process of collecting assets, paying debts and taxes, and distributing the estate to beneficiaries.

If you want to know more about Wills and estate planning, don't hesitate to send us a message. Contact us today to know more.

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.