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WHO INHERITS WHEN
THERE IS NO WILL?

A 2017 survey by the WA Public Trustees found that half of West Australians over the age of 40 do not have a valid Will. The survey also found that only 19% of families with young children have a valid Will.

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What is an Executor and what does an Executor do?

It’s very important to understand what you can and can’t do as an Executor, and when you can act.

Willcraft Estate Planning has outlined everything you need to know about being an Executor.

What is an Executor?

An Executor is someone who has been nominated by the deceased to administer the estate after they die, as their legal representative. Basically, they ensure the deceased’s wishes are carried out and that their affairs are in order. The Executor is usually someone who’s close to and trusted by the deceased.

For estates worth more than $15,000, the Executor may need to complete a Probate application. Once the Will has been reviewed and approved, the WA Supreme Court’s Probate Office then provides a Grant of Probate, which allows the Executor to start administering and distributing the estate.

What does an Executor do in Perth?

Executors have various duties that they must fulfil by law within a ‘reasonable’ timeframe – usually a year after the death. These include but aren’t limited to:

  • Obtaining the Will, which may be located in a secure storage facility like Willcraft’s
  • Notifying the deceased’s beneficiaries and business associates of their death
  • Organising the funeral or cremation services (while considering organ donation, if applicable)
  • Managing the property and assets outlined in the Will
    • Overseeing business interests (e.g. stepping in to manage a business and protect the assets)
    • Collecting and protecting any income (e.g. from rental property or other investments)
    • Investing money that’s not needed in the immediate future (e.g. such as money held in trust for dependants)
    • Collecting personal belongings and valuables
    • Insuring all property
  • Valuing the estate (which is needed for the Probate application), including:
    • Cash
    • Business interests
    • Personal belongings
    • Securities (e.g. stock or bonds)
    • Real estate
    • Property sales
    • Debts due
    • Debts owing
    • Superannuation where no valid nomination has been made or where the estate is listed as the beneficiary
  • Organising the completion of all tax returns and lodging them with the Australian Taxation Office (ATO)
  • Applying for a Grant of Probate
  • Paying all debts owing, including selling assets to do so (e.g. funeral expenses, tax debts, creditors, legal fees, Probate application fees, estate administration fees and so on)
  • Dividing the estate according to the beneficiaries in the Will, including preparing a final statement for each and keeping adequate records of any transactions
  • Establishing trusts, if they’re included in the Will (e.g. a Children’s Trust for minors, a Special Disability Trust for dependents or a Pet Trust for any furry or feathered family members)
  • Receiving any accounting and/or legal advice in order to do the above, if needed

The role of an Executor is similar to that of an Administrator, if the person dies intestate (i.e. without a valid Will).

Do I need to get legal advice as the Executor?

The Executor is responsible for any loss to the estate that happens because they’ve acted in a way that’s unauthorised or considered negligent. It’s common for Executor not to realise the full extent of their duties when dealing with an estate.

This is why the Citizens Advice Bureau and other trusted legal entities recommend that the Executor gets sound legal advice, so they know what they need to do.

Willcraft provides the Executor of our clients with a complimentary appointment where one of our specialist Will lawyers explains the Probate process and directs them towards the next steps. We can also assist with the Probate application for a modest fixed price fee that’s:

  • Based on time rather than a percentage of the estate
  • Paid for by the estate (rather than the Executor)
  • Quoted after our complimentary appointment

What should I include in my Will for my Executor?

To make things easier for Executors at what is already a difficult time, Willcraft recommends that our clients keep the following with their Will:

  • A list of current assets that’s regularly updated
  • The details of any bank accounts, Superannuation funds, direct shares, prepaid funeral bonds and other investments such as managed funds
  • The contact details of any personal or business advisors who can assist the Executor in gathering the necessary information (e.g. their accountant, financial planner, lawyer and so on)

Willcraft also recommends that Will makers ideally choose an Executor who lives locally as it’s a hands-on role that can mean they’re based in Perth for weeks or months while they organise the funeral, Death Certificate, Probate, division of the estate, potential sale of assets and so on.

How do I find out more about Willcraft’s Executor, Probate and Will services in Perth?

For assistance with being an Executor, completing a Probate application, Will preparation and Estate Planning, contact Willcraft by filling in our online form or giving us a call.

We’ll talk through your specific needs and circumstances, and the different options available to you. If you have a Will we can review it to ensure it is valid and identify any oversights.

Our team of specialist Will lawyers has also created a whole series of fact sheets. They cover a variety of important things to keep in mind when you make a Will, apply for Probate or become an Executor, as well as the different types of Estate Planning and Will services that we offer in Perth.