An Executor is the person appointed in a Will to administer the estate of a deceased person.
The Executor is generally not able to deal with the assets of the deceased person until they have an appointment by the Supreme Court known as a “Grant of Probate”. Once this is obtained an Executor is able to deal with the Will-maker’s estate.
The Executor is required to lodge the Will and the death certificate with the Supreme Court. The Court then checks the validity of the Will and issues a certificate called a Grant of Probate on which the Executor is formally appointed. Estates of small amounts generally do not need a Grant of Probate. e.g. An estate with under $6,000 in the bank and all assets in joint names. A solicitor can advise as to whether a Grant of Probate will be required for your specific circumstances.
The Supreme Court decrees that application for a Grant of Probate must be made promptly by the person appointed as Executor. If the person appointed does not wish to take the responsibility then they should, as soon as possible, inform the next of kin or major beneficiaries under the Will.
We recommend consulting with a solicitor as soon as possible after a death certificate has been issued to determine if you are likely to need assistance in matters of Probate including:
- Preparing the application to the Supreme Court for Grant of Probate
- Transfer of title deed for property; transfer of shares; transfer of motor vehicles
- Release of funds from a bank account held in joint names
- Advice on superannuation entitlements
- Advice on inadequate provision made for remaining spouse and children.
The cost depends on the amount of time involved and fees charged by the Supreme Court. An estimate can be supplied on application.
The law holds a person who deals with the assets of an estate as responsible for their interference with those assets.
An Executor may renounce Probate but someone else must be able to take over. A solicitor can apply for someone else to be appointed Administrator and take over the execution of the Will.
If you do not leave a Will then there is an order for payment to different relatives depending on who is alive as at the death of the person. There are a number of persons who can apply to the court to administer the estate.
The state government can apply to the court to be paid moneys from an estate where there are no other living eligible relatives.
However, where a will does not exist significant problems may occur in terms of capital gains tax and other government taxes.