What is an executor?
An executor is the person named in a will to carry out the wishes of a person after they die. They organise to collect the assets of the deceased, pay the debts and distribute the property as set out in the deceased's will.
If the will sets out the deceased's wishes on funeral arrangements or organ donation, the executor needs to make the necessary arrangements.
Does an executor need legal advice?
Executing a will can be complicated. It may be a good idea to get advice from a lawyer. The deceased's estate will cover reasonable fees charged for this.
What are the duties of an executor?
The executor must:
- Notify all beneficiaries named in the will.
2. Manage the property or goods left in the will to:
- take care of any business interests
- safeguard any income
- invest money not needed immediately
- collect any valuables
- insure all property.
3. Value the estate and keep a list of the valuations. The estate includes all:
- business interests
- personal effects
- real estate
- sale of property
- debts due
- debts owing.
4. Complete income tax returns and get a clearance from the Australian Tax Office.
5. Obtain authority to administer the estate:
- Apply for a grant of probate or letters of administration if necessary.
6. Pay all debts owing, including selling assets, if necessary, to pay any liabilities.
7. Establish trusts.
8. Divide the estate:
- Prepare statements for each of the beneficiaries.
- Distribute cash and or assets to beneficiaries according to the provisions in the will.
If the deceased had bank accounts, shares, real estate or other such assets in their name or was a "tenant in common" in real estate with another party, you may need to apply for a grant of probate in order to finalise the estate.
What are the executor’s duties in relation to funeral arrangements?
If the will includes instructions about funeral arrangements or organ donation, the executor needs to make the necessary arrangements.
The executor should try to keep in mind the wishes, if any, of the deceased person, what the estate is and how much it is worth.
If the estate does not have enough assets to cover the funeral costs, the surviving members of the deceased’s family who authorised the funeral arrangements will be responsible for the costs.
If there are no funds and family members do not wish to take on the funeral arrangements, the Department for Child Protection and Family Support (“CPFS”) Bereavement Assistance Program may be able to assist. Call 1800 854 925 (freecall) for more information. Applications can be made through your local CPFS office.
What is a grant of probate?
A grant of probate is permission from the Supreme Court of WA for an executor to carry out the terms of a deceased's will.
To get a grant of probate, you must satisfy the court that the will is valid You must show that:
- there are no later wills
- the deceased was 18 or over when the will was signed
- the deceased was of sound mind and was not under undue influence when the will was signed, and
- the will was signed in the way the law requires.
No application can be made until 14 days after the death of the deceased. If there is more than one executor, any one or all of them can apply.
Where there is only a small amount of property involved, it may not be necessary to seek a grant of probate. This will depend on the type of property involved.
How do I apply for a grant of probate?
You should read the Probate FAQs on the Supreme Court website before applying.
As executor you may apply in person or get a lawyer to do the work. You can make a probate application online at the Supreme Court website and then download the forms, or buy the forms from a Citizens Advice Bureau office. Read these forms carefully and complete them according to the instructions.
The application can be posted, or delivered in person by the executor, or a lawyer acting for the executor, to the Probate Office. If you post it, you should use registered post and keep a copy of all the documents you send.
You must pay the prescribed fee at the time of filing the application.
If the application for probate is successful, you, as executor, get a document saying you can carry out the terms of the will.
For more information on probate, visit the Supreme Court website. You can contact the Probate Office at the Supreme Court of WA on (08) 9421 5152 between 9.00am - 4.00pm Monday to Friday.
You can also download a brochure on probate from the Supreme Court website.
What are letters of administration?
Go to Dying without a will for more information about letters of administration.
Is there a set time for an executor to finish their duties?
An executor must act with great care. The general rule of thumb is that a year is a reasonable time to finish things up in.
If a beneficiary does not believe an executor is taking proper care or doing the work properly, they may complain to the Supreme Court. This is the only right a beneficiary has until the assets are distributed. A beneficiary does not own any property until the executor distributes the estate.
Is there an order of payment between debts and funeral expenses?
Any people or businesses that the deceased owed money to must wait until the assets have been collected before they receive payment.
Funeral expenses must be paid before making payment to any creditors.
What if the deceased had more debts than assets?
If the deceased had more debts than assets, the estate is dealt with as if the person had been bankrupt. In this situation, the executor plays no part in the administration of the estate.
For more information see the Australian Financial Security Authority website.
What if a person named an executor does not wish to act?
If the executor named in the will does not want to act, they do not have to accept the responsibility.
If a person refuses to act as executor, another executor named in the will will take on all the duties. If the will does not name another executor, an application can be made to the court that will appoint an administrator.
If someone refuses to act as executor, they cannot change their minds later.
Can executors get paid?
Sometimes the deceased sets out how much the executor should be paid. If this is not included in the will, the executor does not get paid. The executor may use money from the estate to cover necessary expenses such as accountants, lawyers, etc.
The public trustee or private trustee companies charge a percentage of the estate for their fee.
Do I have to act as executor?
If you are named as executor you do not have to accept the responsibility. If a substitute executor is named in the will they can take on the duties. If no other executor is named, you can apply to the court to appoint an administrator.
I am an executor and am not sure of my responsibilities. What should I do?
Get legal advice.
I do not think the executor is distributing the estate as they are supposed to. What should I do?
Get legal advice.
Where can I get more information?
- Contact the Probate Office Supreme Court WA on (08) 9421 5152 for information.
- Contact the Citizens Advice Bureau on (08) 9221 5711 for assistance with drafting probate documents. A fee is payable. A probate kit for simple probate can also be purchased.
- Contact the Public Trustee WA on 1300 746 116 for independent, professional trustee and asset management services.
- For information on finding a lawyer and questions you should ask, see Lawyers.
- Contact the Law Society of WA on (08) 9324 8600 for a referral to a lawyer who specialises in this area.
Last reviewed: 14/11/2014