Step by step guide for executors of a Will

By Annalyse Betts and Kerin Cotchett

At Elringtons, we understand the loss of a loved one is extremely difficult. This can often be made harder with the responsibility of being tasked with the administration of their estate.

If you are an executor named in a Will, we have prepared this guide to simplify what can be a difficult obligation.

Step One: Funeral Arrangements

When someone passes away, the initial step is to make arrangements for the disposal of the body.

As the executor, you need to organise the funeral arrangements. The costs of a funeral are considered to be an estate expense. This means, the estate will ultimately pay for the funeral if it has the financial ability to do so.

Often, funeral businesses request that payment of the funeral is made immediately following the funeral. If you are able to, these expenses can be paid from your own pocket and reimbursed to you by the estate later on. However, if you are not in a financial position to pay for the funeral expenses, you can submit a copy of the invoice to the deceased’s bank and they will pay the expenses directly from the deceased’s accounts.

Once the bank is notified of the death of the deceased, they will lock the accounts to prevent further until their requirements are met (discussed later on). This of course does not apply to accounts which are owned jointly.

Step Two: Obtain the Original Death Certificate and locate the original last Will

After the funeral arrangements are complete, there is nothing you can immediately do until the Death Certificate arrives. This usually takes a few weeks to be issued by the Births, Deaths and Marriages Department

While you are waiting for the Death Certificate, you may wish to make some enquiries to locate the last original Will of the deceased, if this has not already been done. The best point of contact would be the solicitor which drafted the Will, often the originals are stored in safe custody. In some circumstances, it may located in the deceased’s personal belongings.

Once you have received the Death Certificate, this is usually the appropriate time to make an appointment with our office. Our solicitors will be able to assist you in the administration of the estate and provide advice regarding your obligations and duties as executor.

Step Three: Identify the assets

Once you have received the Death Certificate and know the location of the Will, the next step is to develop a clear picture of what the estate comprises of. Some things to consider are:

Did the deceased own property?
- If so, is it insured?
- Is there a mortgage?
- Where is the Title Deed?
Who did the deceased bank with?
- What are their account numbers?
Did the deceased pay a refundable accommodation bond or sign a contract to an aged care facility?
Did the deceased own shares?
Did the deceased own other investments or bonds?

It is best to gather as much information as you can identify regarding the deceased’s assets and liabilities, and give this to the solicitor so they can assist you in formulating a clear course of action for the estate.

Step Four: Probate. What is a Grant of Probate and do I need it?

A Grant of Probate is a Court order granted to the Executor and confirms the validity of the Will. It provides the executor with the power to carry out their duties in distributing the estate in accordance to the Will.

If the deceased own property in their own right (unless owned as a joint tenant), a Grant of Probate is required to be obtained the Supreme Court. Nursing homes or other aged care facilities often also require a Grant Probate to release the refundable accommodation deposit/bond, and banks will require Probate if the amount of money in the accounts is over a certain value threshold.

Obtaining a Grant of Probate can be a confusing process and involves drafting a number of court documents. Our estate team has the experience to guide and assist you throughout this process.

Step Five: The administration of the Estate

If a Grant of Probate is not required, then you may start the administration process.

If a Grant of Probate is required, you will have to wait until the Supreme Court grants it. Once the Grant is obtained the administration process may begin.

The estate administration process involves completing any required asset forms, transferring or selling the property, paying any estate debts or liabilities, making distributions or gifts as per the Will and any other administration depending on the assets of the deceased.

Frequently asked questions

What about Insurance? It is important that insurance over any property, particularly real estate, continues after the death. This is important, because in the event of an accident or unforeseeable event, such as a fire, the executor may be in breach of their duties including preserving assets of the estate.
How long will the administration of the estate take? It is important to remember that every estate is different. The time frame is dependent on what type of assets need administration, whether Probate is required and other factors such as third party processing times.
For a very simple estate, the administration may take a couple of months, however, for more complex estates, the administration could take years.
Our estates team will be able to advise an estimated timeframe for your particular matter.
What happens if there is no Will?
If someone dies intestate (without a Will) the court will appoint an Administrator who will distribute the estate in accordance with legislation.
In NSW, under the ‘rules of intestacy’, relatives are entitled to a share in the deceased person’s property. As the next of kin, relative or close friend of the deceased, you may need to apply to the Supreme Court of NSW for letters of administration to distribute the deceased’s estate.
In the ACT, if a person dies without a will with no identifiable heirs including cousins, under the laws of intestacy, the ACT Government will be the beneficiary.
The distribution of the property of a person who dies intestate is the responsibility of the administrator of the estate. Typically the administrator is a person with an interest in the estate and is chosen by the court having jurisdiction over the person’s property.
It is common for the Public Trustee and Guardian to act as administrator in such cases.
Please see our ‘Why Should I make a Will?’ article for further information about intestate estates.
What do I do with personal property?
Personal property, such as clothing, books, furniture, towels and cutlery is usually dealt with directly by the executor. The family may arrange to have these items cleared out, however, in the event of a dispute or argument, the executor may have to make a final decision. It would be best to seek legal advice in these circumstances.
Will there be Tax?
Whether or not there will be a tax liability is dependent on what types of assets or income are within the estate. We recommend the executor see an accountant in relation to the final tax returns of the deceased, but also whether the estate needs to file a tax return of its own.