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Executors or Probate

last will and testament

Executors or Probate

An executor is a person appointed under a Will to carry out the wishes of the deceased person, as expressed in their Will. An appropriate person will be appointed by the court to be the administrator where there is no Will, or where there is no executor willing and able to act.

What does an executor/administrator do?

The role of the executor/adminstrator is to:

  • locate the latest valid will
  • assist the family, if necessary, with funeral arrangements
  • obtain the death certificate
  • identify the deceased’s assets and liabilities
  • obtain probate/letters of administration – if required
  • ensure payment of any debts
  • distribute gifts and assets as specified under the will or intestacy provisions

While many people appoint their spouse or other family member as their executors any adult can be appointed and in some instances key advisors such as accountants or lawyers are appointed.

Only one executor is required but often several are appointed and substitutes can also be included in the event your first choice of executor is unable or unwilling to act when the time comes.

While the legal responsibility for the correct administration of a will rests with the executors it is usual for them to seek advice from an experienced probate lawyer. The legal nature of the process makes it difficult for most executors to carry it out on their own.

What is probate?

Probate is simply a statement from the Supreme Court that confirms the validity of the will and allows the executor to distribute the estate of the deceased person in accordance with the will.

In some instances probate may not be required if the estate is only small and comprises simply a motor vehicle or bank accounts and personal effects. However, executors who administer an estate without probate remain personally liable for the debts of the estate and the distribution of the gifts to the beneficiaries.

Where there is no will or formally valid will, the court will grant what is called Letters of Administration, which is similar to a Grant of Probate.

Do I need a probate lawyer?

If you are an executor you should always consult a probate lawyer before taking any action. Some wills may specify that an executor seek the advice of a particular lawyer or firm but generally you can work with any lawyer of your choosing.

Remember that as an executor under a will you have legal responsibilities that should be taken seriously.

A probate lawyer, or lawyer with experience in estate administration, can advise you on:

  • your legal responsibilities including important time restraints
  • the most effective way to deal with the estate assets and liabilities
  • the legal tasks required during the administration of the estate
  • whether probate is required

Acting as an executor can be a stressful and time consuming process, particularly for larger estates, but the right choice of an experienced probate lawyer can ease the burden considerably.

If you are an executor under a will talk to a probate lawyer here at PK Simpson for the advice you need to fulfill your legal responsibilities and ensure the estate is administered in the way the deceased person intended. (02) 9299 1424.