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What if you’re named as an executor, but you don’t want the role?

01 December 2023

Guide Executors

What Does an Executor of a will Do in Victoria?

The main role for executors of a will is to carry out the wishes of someone who has passed on and handle their affairs. These affairs include:

  1. Legal
  2. Financial

This important role encompasses several responsibilities which include:

Applying for Probate

Your first step, before you’re even formally recognised as executor, is to apply for a ‘Grant of Probate’. A Grant of Probate is a document that confirms the validity of a deceased person’s will and provides an executor with the legal authority to administer the estate. Provided by the Supreme Court, the Grant allows the executor to order the transfer of assets from firms such as banks and nursing homes held in the name of the deceased.

 

You can seek the legal advice of a probate lawyer in applying for this grant. However, it may not always be necessary. This depends on the size of the estate left by the deceased person.

You may apply for probate online with the Supreme Court of Victoria here.

Assembling assets and covering liabilities

Ensuring that assets are identified and called in is your top priority as an executor of a will.

 

In order to find all of the assets, you may need to locate a number of important documents, such as:

  • Mortgage documents
  • Debt notices that haven’t been paid
  • Details of the funeral account
  • Property rate notices
  • Certificates of title for real estate holdings
  • Credit card and bank statements from the most recent two years
  • Share and debenture investment certificates
  • Policy documents for life and other insurance
  • Building society account statements
  • Private insurance certificates
  • Vehicle insurance and registration documents
  • Share and debenture investment certificates
  • Other relevant documents relating to the deceased person’s instructions and affairs

Preserving estate assets

Once you have the assets and documents, you need to preserve them until distribution.

 

In order to do so, you need to:

  • Ensure and secure all real estate and other properties.
  • Ensure that your loved one’s remaining cash accrues interest in their bank accounts.

Not doing so may lead to personal claims being made against you in court if mistakes are made. It’s, therefore, crucial to prioritise this responsibility.

Managing income tax affairs

Another important step as will executor is clearing things with the Australian Taxation Office. You’ll need to:

  • Register the deceased person’s death with the Commissioner of Taxation.
  • Submit a tax return for the deceased if their income was higher than the tax-free threshold.
  • Register a trust tax return if the estate you’re in charge of earns an income.

In such cases, it’s best to hire a licensed accountant who can help you with these financial affairs.

Defending the estate

Unfortunately with estate matters, there can be some instances when someone challenges you. They can try to seek further provision from the estate or hold it up in court. In such cases, it’s up to you to defend the estate as the ‘legal personal representative’.

 

Such matters rarely reach the court stage, however, it’s important you know what to do just in case.

 

If the matter does go to court, you’ll likely face one of two primary kinds of legal claims:

  1. Caveats over a grant. This is when someone disputes your ability as executor of a will. They don’t think you’re the best person for the job and so they place a caveat over the estate. This is a court order stopping you from taking some actions without letting that person know.
  2. Family provision applications. This is commonly referred to as contesting a will. The person who makes this claim requests the court to give them a greater share of the estate. As the executor or administrator, the court may hold you liable if the person’s claim is successful. The executor may, and definitely should, therefore, seek legal advice from an expert.

In the event that a challenge does require a legal response, the estate will incur any resulting legal fees. You personally as the executor will not be individually liable.

Distributing assets

The last responsibility as an executor of a will is the distribution of assets.

 

Ideally, your loved one may have given instructions of which estate assets go to who. Before you do distribute the assets, though, make sure that:

  • All assets are accounted for.
  • The estate assets are well preserved.
  • You respect time limits for the will to be contested.
  • You wrap every remaining detail up with the Australian Taxation Office.

It is good practice to wait at least six months from the date of the grant of probate before distributing the estate, in the event that a claim for further provision is made, otherwise the executor will be personally liable for any funds paid out.

How to decline the role of Executor in Victoria?

Once you consider all the information provided, you may decide this isn’t for you. It could present too much of a burden at present because of how long and complicated it gets.

 

If that’s the case, it’s best to seek assistance. You can choose to go to a solicitor for advice or appoint an estate administrator. You should not take any steps to administer the estate (officially known as ‘intermeddling’) if you do not wish to be the executor.

 

And there is no better estate administrator in Victoria than State Trustees.

With State Trustees, you can rest assured your loved one’s estate administration is in safe hands.

 

If you do decide to still act as an administrator but still seek help, State Trustees can:

  • Apply for probate
  • Prepare tax returns
  • Offer legal services

Contact us today and we’ll help you get through this tough time by taking the pressure off your shoulders.

Useful resources

Will writing guide

Read more

Executor checklist

Read more

8 reasons to update your will

Read more

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Original artwork ‘Four Sisters Coming Together’ by Melissa Bell 2023