Expert Advice

Are you prepared to be the executor of an estate? You can say no

Katrina Condie22 November 2021
Tanya Herbertson from Meyer Vandenberg Lawyers

Tanya Herbertson from Meyer Vandenberg Lawyers says being an executor can be a complex and stressful role that not everyone is ready to take on. Photo: Meyer Vandenberg Lawyers.

A family member or close friend has entrusted you to handle their affairs after their death, which is a huge honour, but do you want the responsibility and stress of being an executor to an estate?

If you are appointed an executor, it doesn’t mean you have to accept the role.

Meyer Vandenberg Lawyers partner Tanya Herbertson says it is possible to formally decline the position, which is usually done by signing an affidavit to that effect.

However, she says it is really important that anyone seeking to renounce, does so promptly and before intermeddling with the estate.

“Intermeddling means you’ve held yourself out as the executor or started handling the deceased person’s assets,” says Tanya.

“Often, the will appoints an alternate executor so if the first appointed executor does renounce then the will dictates who is next in line to act in that role.

“If the will does not appoint an alternate executor, usually a beneficiary will apply to the court for a Grant of Letters of Administration and that will authorise that person to administer the estate in the same way the executor otherwise would have.”

Tanya says being an executor is a huge responsibility and some people don’t feel up to the task.

However, if they feel reluctant, she says there’s always help at hand.

“Sometimes people might not want to take on the burdensome job, but we reassure them that we will help and guide them through the process,” says Tanya.

She says there are a number of reasons why someone should consider renouncing their role. For example, if the executor is a person who intends to make a claim on the estate, which could be deemed a conflict of interest.

If there is more than one executor, and those executors are unlikely to work well together, an individual may wish to step away to avoid potential conflict.

Sometimes it’s not practicable for a person to accept the role as executor. For example, because they are living overseas.

Tanya says executors are less inclined to take on estates that are bankrupt or insolvent, while executors who are seriously ill or in prison usually decline.

She says the size of the executor’s job depends on the complexity of the estate assets and liabilities, and whether or not any aspect of the estate is contested.

Some of the things executors typically need to do include organising the funeral, consulting with a lawyer to get advice and assistance with probate, and the administration of the estate and protecting assets by ensuring insurances are current on any house or vehicle.

The executor is also responsible for keeping beneficiaries informed, paying estate expenses and debts, and distributing to beneficiaries as per the terms of the will.

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Tanya says while it may seem daunting, executors can reduce the workload and risk of litigation by engaging a lawyer.

“Getting a specialist wills lawyer to help you with probate is going to save you lots of hours of time and frustration trying to work out what to do, and getting the probate forms and process done right,” she says.

Good legal advice will help ensure you totally understand the will and can fully appreciate the obligations that lie with the executor, explains Tanya.

“Executors should get legal advice to make sure they completely understand their role and what needs to be done to administer the estate legally,” she says.

“It’s important executors make sure they do the right thing because they are legally obliged to act in the best interests of the estate and can be held personally responsible for breaches of their obligations.

“It is smart for executors to get advice to protect themselves and understand how they can limit their personal liability as the executor by minimising the risk of getting taken to court by disgruntled beneficiaries or unpaid creditors.”

Tanya Herbertson and her team at Meyer Vandenberg Lawyers have assisted hundreds of executors and made hundreds of probate applications with the legal fees paid out of the estate.

Original Article published by Katrina Condie on Riotact.


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