Being an Executor is a Tough Job.
The duties of an executor are many and include the duty to arrange for the proper burial/cremation of the testator. Although this duty is usually assumed by members of the testator’s family or friends, it remains the duty of the executor to endeavor, so far as possible, to give effect to the directions or wishes of the testator.
The position of being an executor is not one which should be undertaken lightly as the pitfalls are many and may result in claims being made against an executor personally. The legal and fiduciary responsibilities associated with the administration of an estate should not, in most cases, be undertaken without competent legal and professional advice.
It is dangerous to assume that pre-prepared standard forms and self-help kits eliminate or diminish the need for professional advice and services. There are very real dangers in undertaking the role of an executor as losses sustained by beneficiaries as a result of the actions, omissions or default of an executor may be actionable. Indeed, an executor (or a person who undertakes estate administration without a formal grant of probate ) may be personally liable for losses suffered by the estate and usually without the benefit of compensatory indemnity insurance.
Solicitors who have the benefit of years of successful experience in probate practice are best placed to provide the skilled and competent professional services needed by persons seeking a grant of probate or administration.
An executor must identify and take an inventory of the assets of the deceased and to ascertain their value, ascertain the extent of any debts or other liabilities of the deceased, and also to ascertain whether or not the estate is solvent. The executor is under a duty to discharge any liabilities of the deceased and of the estate. The testator’s reasonable funeral expenses should be paid in priority to other liabilities.
Innocent beneficiaries are protected by law and should not suffer as a result of neglect on the part of the executor. If legacies are not paid within 12 months of the death of the deceased, subject to any contrary provision in the will of the deceased, a claim may be made by the legatee against the executor for interest.
The role of an executor is a tough one and reliance should be made upon the expertise of solicitors.
(*published in Inner Western Courier)
