Frequently Asked Questions

An Executor is someone named in a person's Will as the individual they would like to take charge of administering their estate after their death. Sometimes there is only one friend or relative named, sometimes there are more than one. Either way, the role of Executor can be complicated and time consuming, requiring professional advice and assistance.

Many people appoint a friend or close relative as the Executor of their Will, and often this is meant as a mark of respect and trust in their abilities. It can however be a difficult task, particularly during the grieving period and when emotions are running high.

You should consider carefully your appointment of Executor. It should be someone you trust, someone who can make wise financial decisions and someone who is not very likely to pass away before you.

If you have been appointed an Executor for someone else, you should take the advice of an expert and ask for assistance from a Lawyer.

There is an old saying that the Executor "stands in the shoes" of the person who has died and looks after their Estate for them.

Even in the most simple of cases, Executors can be required to provide the following services themselves or be required to arrange the relevant professionals.

The Executor's role varies with the type of estate of course, but in general the basic requirements of an Executor include:

• Notify the beneficiaries - When a person dies, the Executor locates the Will and immediately contacts the beneficiaries and any relevant business associates.
• Look after the Estate - It is important for the Executor to ensure that all assets including property and investments are safe and arrange insurance protection when needed. The immediate needs of the beneficiaries must also be assessed to ensure that they do not suffer any unnecessary financial hardship.
• Value the Estate - The Executor must identify and account for all assets and liabilities. Each item then requires written confirmation from banks, financial institutions, insurance companies, share registers, titles office and creditors etc. The value of assets must be ascertained, often by obtaining valuations from licenced valuers or estimates from recognised sources.
• Obtain authority to administer the Estate - Before an Estate can be administered, usually the Executor must apply to the Supreme Court for the authority to deal with the deceased's Estate. This is referred to as obtaining "probate of the Will".
• Complete income tax returns - Before an Estate can be distributed, it is necessary to obtain a clearance from the Australian Taxation Office. This means that the Executor will have to give details of all income earned during the current financial year and past years, if the deceased failed to lodge a return. In many cases, the calculation of capital gains tax is involved.
• Pay all debts - Creditors, funeral expenses, income tax, fees for administering the Estate and out-of-pocket expenses must all be paid. This often requires the Executor to sell some assets. Beneficiaries may choose to provide funds to cover these expenses so as to keep the assets of the Estate intact.
• Divide the Estate - When all debts have been paid, the Executor is then free to distribute the remaining assets according to the directions laid down in the Will.
• Establish trusts - Executors are responsible for setting up trusts for beneficiaries. Trusts are required if the beneficiary is under 18 years of age or mentally incapable, or if there are specific instructions in the Will. Such trusts need ongoing administration, often over many years.

How can Legal Essentials help?

Being an Executor is usually a confusing and stressful role at a difficult time. We can take the worry from you by assisting with the whole process. We perform most of the duties of Executor for you under your instruction in a professional and compassionate manner.

There are many reasons you may need to consider updating your Will.

Relationship changes

• Have you recently married?
• Have you begun a de facto relationship since you drafted your Will?
• Have you separated or divorced?

If you answered yes to any of the questions above, you should consider changing your Will.

If you need a family lawyer, we recommend you speak to Lewis Holdway Lawyers or read more on www.yourfamilylawyer.com.au.

Financial Changes

• Have you retired?
• Have you had a notable increase or decrease in wealth?
• Do you no longer own an asset specifically gifted under a previous Will?
• Do you wish to gift a specific asset?

If you answered yes to any of the questions above, you should consider changing your Will.

Family Changes

• Do you have any new children or grandchildren?
• Has anyone named in the Will passed away?
• Do you have any new obligations, such as looking after an elderly parent?
• Have the needs of family members changed, for example: recent disability, divorce, bankruptcy?
• Is your Executor still suitable?
• Has there been any family conflict and you wish to leave someone out?
• Has there been any family resolution and you wish to add someone in?
• Have you established a new business, family trust or self managed super fund?

If you answered yes to any of the questions above, you should consider changing your Will.

New changes should mean a new Will

Once executed, a Will should not be added to or deleted from or even be pinned or stapled or have a paper clip attached to it. It is suggested that a lawyer be consulted if a Will is to be changed or revoked because even the simplest changes must be correctly done or they may have disastrous results.

This document gives the Attorney you appoint authority to make decisions about medical treatment on your behalf if you become incompetent through ageing, mental or physical illness or injury.

The kinds of medical treatment that the agent needs to make decisions about are usually critical treatment - for example, whether or not to continue life support. Ongoing medical treatment (non critical) falls under the enduring power of guardianship.

Be aware the agent you appoint will be able to make decisions about refusing medical treatment on your behalf if you become incompetent. Your agent can only refuse medical treatment on your behalf if it would cause unreasonable distress or if there were reasonable grounds for believing if you were competent you would have considered the treatment unwarranted.

An enduring power of attorney (medical treatment) does not empower an agent to arrange euthanasia or refuse palliative care.

There are safeguards to protect you if the agent acts improperly. For instance, before making any decision the agent must discuss your condition with your doctor.

This document allows you to appoint someone who can assist you while you still have capacity to collect and report information and implement decisions. For example, this document could allow someone to deal with a utility company on your behalf.

It is useful particularly for anyone who might have difficulty managing their day to day affairs because of physical infirmity, even though they are perfectly mentally capable of doing so.

It does not have any effect once you lose capacity - that is when Enduring Powers of Attorney and Enduring Powers of Attorney (Medical Treatment) take effect.

This document allows someone to make decisions for you, but only while you have capacity. It is commonly used by someone who is going overseas and needs someone to sign on their behalf while they are away.

We can:

•   Advise on whether or not a power of attorney could assist in your circumstances.

•   Draft a document that meets your particular needs and legal requirements.

•   Advise you on the implications of the types of powers of attorney.

•   Review an existing enduring power of attorney.

•   Advise on the powers of the Principal and the attorney.

•   Sign and witness all documents for you.

Our prices are available on our website here.