The role of an Executor: Duties, challenges and best practices

When someone passes away, their estate often falls into the hands of an Executor, a vital role that carries significant responsibilities and implications. The Executor is a key player and has the role of ensuring that the deceased’s wishes are honoured and that their estate is administered efficiently. The duty of an Executor is not a simple one, the work involved in estate administration can be onerous upon an Executor’s time and emotions. 

Key duties of an Executor

The Executor’s duties can be broken down into several key responsibilities, including locating the Will, obtaining Probate, accounting for assets and liabilities and distributing the assets in accordance with the terms of the Will. 

An Executor is a fiduciary and has a legal obligation to act in the best interests of the estate and its beneficiaries – fiduciary being someone who has a legal or ethical relationship of trust with one or more parties. This obligation includes managing the estate’s assets responsibly and prudently, similar to how a reasonable person would manage their own affairs, putting the interests of the estate and beneficiaries above their own and treating all beneficiaries fairly, avoiding favouritism or bias.

Failing to uphold these fiduciary duties can lead to legal consequences, including personal liability for losses incurred by the estate.

Being an Executor is not without its challenges. Some common issues include the emotional strain of losing a loved one, dealing with a large or complicated estate and managing disputes that may arise between beneficiaries.  It’s also an incredibly time consuming job, and not one that can be taken lightly.

To effectively manage these challenges, there are a range of things Executors can do:

Stay organised 

As an Executor, you are accountable to the beneficiaries of the estate. In large or complicated estates, it can be easy to lose track of key documents and records that the beneficiaries may request to review. A few steps that Executors can take to avoid these challenges include:

• Maintaining a physical or electronic record of all important documents, deadlines, communications, the estate assets and liabilities, and a ledger of payments made in and out of the estate. 
• Making key documents and transactions transparent to the beneficiaries as the estate is managed and distributed. 

Communicate regularly 

One of the key areas for dispute is a lack of communication between the Executor and the beneficiaries. Keeping the beneficiaries informed about the progress of the estate administration assists in minimising anxiety of the beneficiaries and helps prevent conflicts from arising. We find that open communication fosters trust and helps prevent conflicts, ultimately making the process smoother for everyone involved. Encouraging the beneficiaries to communicate with you as executor can assist in lowering beneficiaries’ anxieties and allows you to easily address concerns or any misunderstandings. 

It is important that if you decide to establish timelines, that you are able to meet the timelines and manage the expectations of the beneficiaries efficiently. Whilst the constant communication with the beneficiaries can be onerous on Executor, it is a key part in successfully fulfilling your duties as an Executor. 

By conducting regular meetings or providing consistent updates to the beneficiaries, the executor is then able to address concerns and develop a transition plan that respects everyone’s interests. The process was smooth, largely due to proactive communication and a clear strategy.

Some suggested key points of communication can include:

• An initial notification: Informing beneficiaries of the death and that you have been appointed as the executor of the Estate.
• Progress updates: Regularly updating beneficiaries on the estate’s status, including obtaining a grant of probate, advising of an asset inventory and your anticipated plan and timeline for distribution.
• Final accounting: Providing a transparent overview of the estate’s financial activities, a proposed distribution plan, including being able to produce the records, before distribution.

Document, document, document 

A key area of dispute is being unable to show beneficiaries exactly what has occurred within an estate. By maintaining detailed records of all actions taken, including communications with beneficiaries and transactions related to the estate, you are able to provide the beneficiaries with an exact outline of the transactions that have occurred.

Seek professional advice  

No two estates are the same. Some estates might appear to be a simple process at first glance, and then develop into a dispute. At any time, as the Executor of an estate, you are able to seek legal, tax and financial advice as to the administration of the estate. 

Due to the onerous nature of the role of an Executor, it is common for Executor’s to engage legal professionals to undertake the administration of the estate on their behalf. The benefit to engaging a legal professional is that it alleviates the time required from the Executor and ensures the Executor’s duties are fulfilled correctly.

Some key areas that you as Executor may seek advice include:

• Complex estates: Large estates with detailed asset structures or foreign assets/beneficiaries.
• Tax issues: Executors should consult with tax professionals to ensure all tax obligations are met and to navigate potential liabilities. If an estate is distributed and the tax liabilities have not been paid, an Executor may be personally liable for the tax liabilities.
• Legal disputes: If disputes arise among beneficiaries, involving a mediator or lawyer can help resolve conflicts before they escalate.

A path forward

The role of an Executor is crucial to the effective administration of an estate. Well informed Executors are much more likely to be able to navigate the complexities of estate management with confidence. By prioritising organisation, communication, and professional assistance, an executor can fulfill their responsibilities while preserving family relationships during an already challenging and emotional time. Ultimately, the Executor’s commitment to their role can make a significant difference in how smoothly the estate is administered and how beneficiaries are treated throughout the process.

How Solomon Hollett Lawyers can help

Solomon Hollett Lawyers often act for Executors by assisting them with the administration of estates. We are able to alleviate the stress of communicating with the beneficiaries and guide Executor’s through the process of administration. We can be as much or as little help as you like – from managing the estate from start to end on your behalf or providing you with advice as to the expectations of you in your role as Executor. Feel free to reach out to us for an obligation free 15 minute telephone consultation to discuss how we can assist you with your role as Executor.