“My Great Aunt Edna just died and it seems she has listed me as her sole executor. I’m feeling quite overwhelmed and don’t know where to start.”

When a family member or close friend dies it is normal to feel a whole range of feelings ranging from grief to confusion. The news that you have been named as an executor may come as a surprise (although hopefully not), and will certainly heighten these emotions during what is already a busy time.

As a practicing Wills and Estate Specialist, it is not uncommon for me to receive telephone calls from next of kin on the very day that their beloved has died. At this time I like to reassure them that the important thing to do at this point is to spend time with family and friends, make funeral arrangements and (above all) celebrate the life of their loved one. Once the dust has settled, usually a few weeks down the track, is generally the best time to make an appointment to meet with a solicitor experienced in the management of Wills and Estates to discuss what needs to be done.

When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors – the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully.

“What is my job as executor?”

An executor has many important duties when acting on behalf of the estate of the deceased person. They include notifying banks and other organisations identifying who the beneficiaries of the estate are and determining what their entitlements are, paying the liabilities of the deceased and any estate claims (from the value of assets held by the estate) and most importantly obtaining the grant of Probate from the Supreme Court of South Australia (or in another State).

“I’ve heard of Probate but I don’t really know what this is or what it entails on my behalf.”

A grant is the official recognition by the Supreme Court of what document or documents constitute the last Will and the right of the personal representative named to administer the estate of a deceased person.

There are two types of grants: Grants of Probate and Grants of Letters of Administration.

Grants of Letters of Administration are needed where there is no Will or the executor who has been appointed is not able to act for some reason.

All applications for grants must be in accordance with the Rules of Court which govern who is entitled to a grant and the manner in which the application must be made.

“When will I need to do this?”

Whether a grant is needed will depend on the assets of the estate. For example, a bank holding money belonging to the deceased will need to know who that money should be paid and the grant is proof that the person named (executor or administrator) is the person entitled to collect the money on behalf of the estate.

If the deceased owned a substantial number of shares in a company, the company will usually insist on seeing the grant before it will transfer them.

A grant will be required if the deceased owned a house in his or her own nameor held an interest with another party as tenant in common. The Lands Titles Registration Office will not transfer land to another person without a grant. However, real estate owned by the deceased as a joint tenant with another person cannot and will not form the subject of a grant or part of the deceased estate as the surviving joint tenant(s) are automatically entitled to the property.

On the other hand if the deceased had very minimal assets it may not be necessary for the executor or administrator to apply for Probate.

“Wow, now I’m really feeling overwhelmed. What else do I need to know about this process?”

Yes, the process for apply to the Probate Registry seeking a grant of probate or Administration is very complicated and difficult for most lay people. The application may become even more difficult if;

• the validity of the last Will is in question,
• there is uncertainty as to what constitutes the last Will
• the intended last Will has been completed incorrectly (undated or signed wrong).

The list is endless. These problems may create significant delays in dealing with estate assets and finalising the role of the executor. For these reasons, it is always recommended that you speak to a solicitor concerning the Will of a deceased especially if you are named as an executor. Of course the good news is, that in the hands of a Wills and Estate Specialist, this process should seem relatively straightforward from where you stand.

A close friend approached me last week concerned that she had been nominated executor in her grandmother’s Will, she was uncertain exactly as to what this would entail.

It is a familiar scenario.  Every day executors are nominated in Wills.  Usually the nominated person is aware of this, sometimes they are not (in which case they are not alerted to this fact until the estate is enacted).  Either way, too often the nominated person is unsure of what the role entails and what Law requires of them.

What is an executor?

An executor is a person that the Will maker has nominated to be in charge of the administration of the estate following their death.

Who can be named as an executor?

The executor usually will be a family member, or alternatively, a trusted advisor such as a solicitor. The latter is always a good option if you know that there might be conflicts within the family since they can act independently.

While it is courteous to appoint an executor having advised the person of your intention, it is not something which the law mandates must occur. This accounts for the reason why many people are only aware of this appointment after a death.

What do I need to do as an executor one the love one has died?

Locating the Will is your first and most important task.  If you are aware that you are the executor from the outset then this is often straightforward.  However, this is not always an easy task and may involve quite a bit of document sorting and sifting to locate the papers.

Most people will store these alongside other important documents.  Often you will be able to locate a copy of the Will and from here you will be directed to a lawyer’s office or a trustee company for the original.   In this case it is the role of the executor to make contact with the holder of the Will, advising of the deceased’s death and requesting confirmation that they do indeed hold the original document.

At this stage it is prudent to leave the original wherever it is for the time being and ask that a couple of “certified” copies of the Will to be sent to you as the executor.

In the event that the deceased or the executor already has possession of the original Will it is imperative that the condition of the document is not altered in any way.

Did you know?  It is critical that a Will is kept in its original condition.  Do not alter the Will in any way.  This includes removing staples (even for the purposes of photocopying), adding paperclips or other fastening devices to the document, or making any written changes or erasures.  Doing any of these things will result in additional time, trouble and expense in administering the estate once an application has to be made to Court for a Grant of Probate.

As soon as possible the executor should take steps to identify and safeguard the assets.  For example a house should be made secure, insurance arrangements should be checked to see that they are adequate, Banks should be advised of the death so they can freeze the accounts, advise Centrelink and re-direct mail.

The executor is responsible for compiling a list of the various assets, including:

• Details of bank accounts;
• Other investments with banks, managed funds or financial institutions;
• Shares;
• Personal effects;
• Cars;
• House property, you will need copies of the council rates;
• Any debts that are owing to the deceased;
• Any debts that the deceased owes to other people.

Once you have gathered this this information it is time to meet with a lawyer to prepare the documentation for a Grant of Probate.  This document is legally required to allow the release any assets belonging to the estate to the nominated beneficiaries.  It is vital that you seek support from a solicitor skilled in this field of law. Too often we hear of difficulties encountered at this stage because the solicitor employed was unfamiliar with the nuances of this area of the Law.

As industry leaders in the field of Wills and Estates Welden & Coluccio Lawyers can assist you to obtain this grant within a realistic time frame so that you can relax and get on with living.