INFORMATION FOR EXECUTORS
A person has died and you have seen the Will. You are named as the executor (perhaps with someone else as joint executors)
What is an executor expected to do?
The executor is the representative of the person who makes a Will. They are named in the Will. If a person dies, they will more than likely have both assets and debts. Their Will says who is to receive their assets, but cash assets such as bank accounts have to be gathered in and assets such as real estate or shares will probably be sold. The executor is the authorised person to gather in the cash assets and sell the non-cash items.
The executor’s responsibility is to pay all debts and distribute what is left among the “beneficiaries”, the people the deceased person said their assets were left to.
The executor has other responsibilities, such as:
- Securing assets, such as making sure a house is securely locked, or a sum of cash at the deceased person’s home is counted and kept secure.
- Insuring assets. If the deceased didn’t have house insurance, the executor can’t take a risk of damage by fire, storm etc which might reduce the amount received by a beneficiary.
- Finalising income tax affairs.
What does “probate” mean?
“Probate” means obtaining what amounts to a certificate from the Court that the Will is the last Will, that it is a valid Will and that the appointment of the person named in the Will as executor has been confirmed.
Assume that you are a bank manager and you hold money in an account for a customer. Someone comes along and says that the customer has died. They have a photocopy of a Will and say they are the executor. They demand the money in the customer’s account!! What would you want to know?
You would want to know that:
- The Will that you have received a copy of is a valid Will. That is, it has been correctly executed and is otherwise valid as a Will.
- There is no later Will, that might have named someone else as executor.
- The person who is asking for the money is the person named in the Will as the executor.
The process to prove these things is an application to the Supreme Court of Queensland (or another State) for a Grant of Probate. The documentation presented to the Court satisfies these points, and the Court issues its own document (the “Grant”) that says that the application has been granted and names the executor. A copy of the approved Will is attached. When the bank sees a certified copy of the Grant document, the bank is protected so it hands the money over.
Does probate always have to be obtained?
No. Banks (and insurance companies, share registries and the like) know that it costs money to go to the Supreme Court, so they set limits (different banks etc have different limits), below which they will usually accept a written undertaking from the executor to hand back the money if someone else turns up later who should have actually received the money (perhaps there was a later Will that wasn’t discovered until after the bank had paid out).
An executor who is not a beneficiary will sometimes want the protection of a Grant of probate even if there is no bank or other institution requiring that a Grant be obtained, so they don’t run the risk of having to honour the undertaking then finding that they can’t get reimbursement from the beneficiaries who have already received the money.
What happens if a person dies and they hadn’t made a Will?
First thing is no, it doesn’t go to the Government. Well, it would go to the Government, but only if there is no living relative found anywhere on the planet.
The Succession Act sets out a table of who is entitled to the assets of a person who dies without a Will. This is fairly much commonsense, being to a spouse (legal or de facto), with or without children, but if no spouse or children then to family members, in steps according to how close the relationship is (parents first, then brothers and sister, then grandparents etc).
If there’s no Will, who takes charge?
Someone needs to take on the same role and duties as the executor appointed by a Will (see “What is an executor expected to do?). This person is called the Administrator and is usually the person (or one of the persons) entitled to receive the assets. That person applies to the Court for a “Grant of Administration”. The person appointed by the Court is entitled to collect the assets of the deceased, like the executor of a Will does.