In Victoria, and most states of Australia, the role of Executor of a Will is to:
1. Organize or assist with the funeral arrangements for the deceased.
2. Ascertain whether the deceased left a Will and if so, the whereabouts of the original document.
3. Ascertain the assets held by the deceased and any liabilities owed as at the date of their death.
4. Notify the following parties of the death, although this task is often carried out by family members:
• Medical Practitioner.
• Accountant / Australian Taxation Office
• Banks and other financial institutions
• Health Insurance / Medicare
• Electoral Office
• Vic Roads – Vehicle registration and cancellation refund (if any) of drivers licence.
• Post Office
• Clubs and other organisations.
• Subscriptions to Newspapers or magazines.
• Cancel taxi card.
• Utilities – electricity, gas, telephone, municipal office (rates) water supply company.
• Veterans Affairs (if relevant)
5. Obtain a Grant of Probate from the Victorian Probate Duties Office (if required). In some instances obtaining a Grant of Probate will not be necessary and a lawyer experienced in this area will be able to advise if so.
6. Until the Estate assets are called in and the debts of the Estate paid, the beneficiaries under the Will have no right to the assets of the Estate, even if they are specifically bequeathed to them.
7. On winding up the Estate the Executor is required to provide an accurate record of the monies received and disbursed by the Estate and to prepare a Distribution Statement reflecting same.
8. On the winding up of the Estate the Executor is responsible for the preparation of Releases, which are required to be executed by the beneficiaries of the Estate acknowledging receipt of their entitlement in the Estate.
9. An Executor must discharge his or her duties with all due care for the good and benefit of the beneficiaries and to ensure the interests of the beneficiaries, and particularly the interests of any minor child or children or disabled beneficiary are protected.
10. An Executor has an obligation to avoid a position of conflict between his/her own interests and the interests of the Estate in general and the interests of beneficiaries in particular.
11. The Executor should make arrangements with an Accountant to obtain a tax file number for the Estate and for a taxation return to be prepared for the Estate for the current financial year. The Executor or their Lawyer or Accountant should also contact the Australian Taxation Office to ascertain whether a final tax return for (the deceased) is required to be lodged. In the event tax is assessed as being payable, this will be classed as debt of the estate and will need to be paid from the proceeds of the estate, prior to any distribution taking place.
12. Due to the complexity of obtaining Probate, the administration of and the winding up of an Estate, it the usual practice for Executors to appoint Solicitors to attend to all these matters on their behalf. The Executor is entitled to be reimbursed for all such reasonable expenses incurred by them from the Estate.
Role of Trustees: (this is normally the same person as the executor unless the will provides otherwise ):
1. The Trustee’s role is to ensure that the directions of the deceased are carried out in accordance with the terms of the deceased’s Will and pursuant to Law.
2. This can range from merely having to pay out stipulated adult beneficiaries after payment of the debts of the Estate to overseeing and administering trusts, which may last for many years.
3. If there are beneficiary children who are minors, their share in the deceased’s Estate will need to be held in trust on their behalf until they attain the age of 18 years or older if specified so in the Will.
Probate applications- what paper work and information is required:
1. The original Will of the deceased.
2. The full Death Certificate of the deceased.
3. The date of birth and country of birth of the deceased.
4. The date of death and place of death of the deceased.
5. The occupation of the deceased as at the date of death.
6. Executor’s occupation and full residential address.
7. Whether the deceased was married, living in a bona fide domestic relationship, was widowed, separated or divorced at the time of death.
8. Whether the Executor is aware of any other persons who may legally be entitled to a share in the estate or be making a claim or contesting the Wife.
9. The full details of the make and model of any motor vehicle owned by the deceased and estimate of the value of same.
10. Whether the deceased was in receipt of any Centrelink (Social Security) payments, or benefits or any other pension either in Australia or overseas and whether the Executor has notified these agencies of the deceased’s death.
11. Whether the deceased had any accrued salary entitlements, holiday pay entitlements, long service leave, retirement or superannuation benefits accruing from date of death. (Superannuation does not fall into the estate but is usually paid to the beneficiaries nominated therein, however payment to any beneficiary is at the discretion of the Trustee of the Fund).
12. Full details relating to any shares held by the deceased, inclusive of the name of the company with whom the shares are held, the number of shares held, and the SRN numbers of the holdings.
13. Full details relating to any life insurance policy over the life of the deceased. Proceeds of life insurance do not fall into the Estate but are paid to the beneficiary nominated therein.
14. Full details of all debts owed by the deceased at the time of death.
15. Full details of any other investments, bank accounts or other assets held by the deceased. All bank accounts will be frozen by the relevant institution once they have been notified of the death, with the exception of payment of funeral expenses. The bank will release these funds upon provision of a tax invoice from the funeral parlour. Any funds which may be withdrawn from the deceased’s account after death, with the exception of funeral expenses, will need to be repaid to the Estate by the person who withdrew the funds.
16. Full details of any real estate owned in Victoria or elsewhere by the deceased. In the event the property is owned with another person as a joint proprietor, then the property does not fall into the estate of the deceased, but automatically passes to the surviving proprietor. If the property is owned by the deceased solely or as a tenant in common with another person, then the property does fall into the deceased’s estate. A current market appraisal of the property from a local real estate agent should be obtained, so that the value of the property can be accurately recorded in the Inventory of Assets and Liabilities. Legal and accounting advice should be sought on any capital gains tax implications on selling the property.
17. Full insurance details relating to any real estate owned by the deceased are required. It is important to ensure that any building insurance does not lapse whilst Probate is being obtained and the Estate is being wound up.
18. In the event a decision is made by the beneficiaries jointly that they wish to sell the real estate, the Executor should bear in mind when placing any property on the market for sale that until such time as a Grant of Probate has been obtained and an Application by Legal Personal Representative has been lodged with the Land Titles Office, an Executor will not have the legal capacity to deal with the property. In the event of a sale being secured prior to this occurring the Executor should allow sufficient time for Probate to be granted, when determining the settlement date. This can take several months depending upon the size and complexity of the estate.