I have been nominated as an executor, what do I have to do?
If the above sounds like you, don’t despair. Acting as an executor can be a daunting and foreign experience for many and it is not uncommon for clients, at least in the initial stages, to be unsure of just what it is an executor is required to do.
Given the recent examination of executor obligations and liabilities by the Supreme Court in Brooks v Young [2018] SASCFC 81, we thought it would be a good opportunity to revisit just what it is that an executor is obligated to do when administering an estate.
Primary Obligation
An executor’s primary obligation is to identify and gather the assets of the estate, pay any liabilities or expenses of the deceased and distribute the estate in accordance with the terms of the will.
What is required to administer an estate will depend on the nature of the assets contained therein. Estates consisting of real estate will always require an application for either grant of probate or letters of administration (if there is no will); however, some estates may be distributed without such a grant.
In administering an estate, executors have a duty to the beneficiaries to act with due diligence, honesty and in good faith for the benefit of the beneficiaries.
An executor cannot put themselves in a position where their own personal interest conflicts with the interests of the estate or act in such a way that benefits themselves, or the interests of one beneficiary over the others.
If an executor fails to perform their duties, or mismanages or wastes the assets of an estate, they may be held personally liable to beneficiaries for any loss caused.
Although the role creates many obligations, being appointed as an executor does not have to be an unpleasant or daunting experience.
Advice and Support for Executors of a Will
“(We) have been delighted with the service we have received from you and it was easy to recommend you.” Wills and Estates 2015
We strongly advise that you engage, at an early stage, legal representation from qualified estate lawyers. This is best way to proceed with confidence and ensure that you are discharging your role in a lawful and correct manner.