What is an executor
An executor (where there is a will) or administrator (where there is no will) is the person or people responsible for looking after a deceased person's estate. The executor is legally obliged to act in the interests of the estate and is responsible for carrying out the deceased person's wishes. Their role also includes the administration and distribution of the deceased's assets to their chosen beneficiaries.
Duties of an executor
Some of the tasks an executor may be required to do include:
- Locating the deceased's Will
- Appointing a solicitor
- Locating the assets and liabilities of the estate
- Liaising with Centrelink, Medicare and other authorities to notify them of the passing
- Distributing personal items of the deceased
- Signing all required documents for the purposes of making an application to the Supreme Court for a grant of probate or letters of administration
- Paying debts and collecting assets
- Discussing with the beneficiaries what they will receive and how they will receive it
- Distributing the assets of the estate to the beneficiaries
- Maintaining adequate records of funds received, payments made and distributions made.
What is probate/letters of administration
Depending on the size of the estate, you may be required to make an application to the Supreme Court of NSW for a grant of probate or letters of administration. This is often required where the deceased owns real estate or assets over a certain value.
Probate is the formal process of proving the validity of the will of the deceased and your appointment as the executor.
Letters of Administration is the formal process of proving you are the next of kin of the deceased and your appointment as the administrator. This is the process undertaken where the deceased did not leave a will, or when they left an informal will.
The application consists of an affidavit of the executor or administrator, the original will of the deceased, a certified copy of the death certificate and an inventory that discloses that assets and liabilities of the deceased as at the date of death.
What happens after probate/letters of administration is granted
Once the Supreme Court issues the grant of probate or letters of administration, the estate is then in a position to collect the assets. This often involves the closure of bank accounts, sale of shareholdings and completion of the transfer or sale of real estate owned by the deceased.
Any debts of the estate must be paid before the estate can be distributed to the beneficiaries. The executor then distributes the estate in accordance with the terms of the will or the administrator will distribute the estate in accordance with the rules of intestacy.
The time taken to administer an estate will depend on how complex the estate is however generally one year is considered a reasonable time to wind up an estate.
How Kells can help
The role of an executor can be daunting and we at Kells are here to help you through each aspect of your matter.
The process involved in the administration of the estate is generally:
- After finding out that you have been appointed as an executor or administrator, you come in for an initial appointment with one of our estate solicitors. During this appointment, we gather information from you about the deceased, including where you know they held their assets, such as which banks they banked with and any property they owned as well as going through the terms of the deceased's final will (if available)
- Once we have a copy of the death certificate, we write to the asset holders letting them know we are acting for you and that they can direct all correspondence to us. We advise them of the passing of the deceased, and ask that the banks confirm accounts held by the deceased and the amounts held in those accounts
- We are required to publish a notice on the Supreme Court online registry which advertises your intention to apply for a grant of probate/letters of administration
- Once we have heard back from all the asset holders and the 14 day time frame on the notice of intended application expires, we prepare the probate application
- Once the application is prepared, we arrange a second appointment for you to come in and sign the application
- We then lodge the application with the Supreme Court. Generally this takes about 4 – 6 weeks for the grant to be issued
- Once the Supreme Court grants probate/letters of administration, we are then able to collect the assets of the estate in anticipation of making a distribution and pay any debts. If required, at this stage, we also transfer the property into the names of beneficiaries, or can assist with arranging the sale of the property
- We then arrange for the distribution of assets of the estate to the beneficiaries and finalisation of your matter.
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.