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Tasmanian Wills - The Role of the Executor Explained

Are you the executor of an estate or have you been asked by a family member or close frield to be appointed as an executor under their Tasmanian Will? If so, you should understand the importance of this role and what is involved. This article describes the process by which a person’s estate (being any property, bank accounts, cash, shares, furniture etc.) is transferred after they die.  One of the critical aspects of this process is choosing an Executor of the estate.

It is important to note that Wills are governed by State laws. In Tasmania, when a person dies leaving assets, their appointed Executor must obtain a Grant of Probate (Probate’’) from the Supreme Court of Tasmania.  Without Probate an executor cannot deal with any assets, including transfer of property or accessing bank accounts to beneficiaries, no matter what the Will states. 

In the case of a couple whose assets are all jointly owned, or who have relatively small holdings of shares or cash, Probate may not be required because joint assets will automatically pass to the surviving partner. 

Obtaining Probate can be straightforward, but on occasions it can be complex.  There can be issues for technical reasons – for example if the spelling of the person’s name on the death certificate differs (not matter how small the difference) from the spelling of their name in the Will can cause issues and delay the Executors ability to administer the Estate.

However, the most common difficulty faced by Executors is an application for Probate being challenged by others.  There are a number of grounds that challenges can be made.  Such challenges being the:

  • Will is not legally valid;
  • Will was not the last one made by the deceased;
  • person making the Will did not have the mentally capacity at the time they made their Will; or
  • person making the Will was unduly influenced when they made their Will. 

Such challenges are normally made by people who consider that they are entitled to a share, or greater share of the estate than is provided for them in the Will.

Apart from applying for Probate, what are the other responsibilities of the executor? The executor stands in the shoe of the deceased and administers the estate. The executor's role varies depending on the of estate, however the role of executor generally includes:

Arranging the funeral and the burial or cremation of the deceased (although the arrangements are usually carried out by agreement with the family and in accordance with any express wishes of the deceased). Funeral expenses are to be paid first from the estate of the deceased;

  • Locating the original will and confirming the executors and beneficiaries;
  • Identifying and disclosing to the Court the assets and liabilities of the estate;
  • Organising payment of outstanding liabilities. All debts of the deceased are to stand in equal degree (no debts are to be given priority) and should be paid out of the assets of the deceased;
  • Lodging taxation returns for the deceased and for the estate; and
  • Distributing the estate to the beneficiaries in accordance with the will and, if necessary, organising the transfer of assets. 

Given the importance of the role of the executor, you should take the time to appoint the right person to be the executor of your Will. This should be a person who can make prudent decisions potentially under great pressure.

If the role of executor sounds difficult do not despair, the lawyer acting for the estate will provide assistance along the way and will prepare the required legal documents and complete the forms for the executors to check and sign.

If you are an executor of an estate Cormiston Legal can help you collect the assets, identify their value, lodge the appropriate documentation in the Supreme Court of Tasmania, obtain Probate and attend to the liquidation or transmission of assets to the beneficiaries under the Will.

To discuss how we can help please contact us on 03 6332 9353.

 

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