Determine the Executor or Administrator of the Deceased Estate

An Executor is the person nominated in the deceased person’s Will. The Executor was likely nominated as a trusted person who knows the deceased person well. Hence being able to administer the deceased estate in the best interest of the deceased person to fulfil their final wishes. Where a Will exists, in most cases one or more Executors are nominated but there may be a Will that doesn’t nominate anyone. In this case the person taking on the role and duties would also be referred to as Administrator explained below.

An Administrator is mostly a senior available Next of Kin of the deceased person who agrees to take on the role and duties to administer the deceased estate according to the legislation where no Will is in place.

• find the Will if one was left;
• arrange the transportation of the body and the funeral;
• obtain the death certificate from the State/Territory’s Registry of Births, Deaths and Marriages;
• determine the Beneficiaries and ascertain the deceased person’s assets and liabilities (see Steps 13 – 25);
• assess the estate value based on the deceased person’s assets and liabilities;
• apply for Grant of Probate or Letters of Administration if required;
• pay the deceased person’s debts, income tax, duties and funeral expenses;
• distribute the assets according to the terms of the Will or the relevant laws; and
• act in accordance with fiduciary duties.

• act in good faith;
• act in the best interest of the deceased estate; and
• not make decisions or take actions that will benefit you directly or indirectly (also known as conflict of interest).

In summary, the main objectives of an Executor or Administrator are to establish the value of the estate, administer it and distribute the estate to its Beneficiaries. This Process Guide will assist you to work through each commonly known step.

If you are the person or one of the persons named Executor in the Will or you are the most senior available Next of Kin who will most likely be administering the deceased estate, you should first decide whether or not you want to take on the duties outlined above.

Some of the duties may seem daunting at first, but simplyEstate provides clear guidance to help you navigate through the estate administration. simplyEstate has also partnered with numerous trusted service providers across Australia for each step when things get a bit tricky or you want to take advantage of some support along the way.

• the deceased has likely nominated you based on their trust and belief in your ability to administer the estate as per their wishes if a Will is in place;
• deceased estate administration on average takes between six and 12 months depending on the complexity and size of the estate; and
• a good relationship with the immediate family and Beneficiaries is in place or can be established to ensure the estate can be administered and distributed as intended.

If you decide to do take on the duties and act on behalf of the deceased, congratulations! You can always count on simplyEstate to help. You can contact us via email or book a first free phone appointment if you are ever in doubt or don’t know where to start.

The decision to take on the duties as Executor or Administrator should be made as soon as possible and before taking on any duties of the estate administration. The reason for this is to protect the estate and its Beneficiaries as well as creditors. If you intend not to take on the duties it is recommended not to start with the administration process if reasonable and your specific circumstances allow, as it may be interpreted as having assumed the Executor or Administrator role and you may be unable to resign (also referred to as renounce).

However, you may still be able to renounce your role as Executor or Administrator after making arrangements for the body transport and funeral to not delay this important activity if your specific circumstances require this.

When no Will can be found and the family is also unaware of a Will having been put in place, it is said that the person died intestate. The Next of Kin who will most likely be appointed the Administrator will administer the deceased estate following simplyEstate’s Process Guide.

• the deceased person’s spouse;
• children over the age of 18;
• parents; and
• siblings over the age of 18.

Wills that only name a single Executor are simpler to administer as the person appointed can go through the administration process without needing joint authorisations. Sole Executors will also be able to best act in the interest of the deceased without getting entangled in disagreement between co-Executors.

Wills that name multiple Executors can be more difficult to administer as the persons appointed need to act jointly unless Executors are differentiated in the Will as primary or secondary (also referred to as substitute or alternative) Executors.
If the Will expresses joint executorship or does not differentiate, the Executors can agree to act jointly or authorise one of the Executors to act on their behalf as if they were the sole Executor nominated in the Will.

If you agree to act jointly, you can move to Step 5.8 below.
If you want to authorise one of the Executors to act on everyone’s behalf, then you can follow the process outlined below for the relevant State/Territory:

If you are nominated as an Executor in the Will and are unable or unwilling to act as Executor, you can officially renounce your appointment. In this situation, the secondary (also referred to as substitute or alternative) Executor(s) will be appointed if there were multiple Executors nominated in the Will.

• a close relative;
• a close friend;
• a third-party Executor (e.g. Lawyer); or
• your State/Territory’s Public Trustee,
  may be appointed.

If you are not nominated as the only Executor on the Will, you can complete the relevant documents and provide these to the Executor who will apply for Grant of Probate as outlined in Step 27 – Apply for Grant of Probate and Letters of Administration or you can submit and file your renouncing document directly with the relevant Supreme Court by State/Territory as explained below:

It is not unusual that the Executors, Administrator, Next of Kin and Beneficiaries may disagree about certain views and decisions along the way. Disagreements are ideally discussed and mediated between the parties.

• The Executor or Administrator did not sufficiently communicate with the Beneficiaries;
• The time taken by the Executor or Administrator to administer the estate;
• The Executor or Administrator is seen to be taking advantage of the powers vested in them to advance their personal interests and not those of the Beneficiaries (conflict of interest);
• The Executor or Administrator did not locate all the property and did not insure it appropriately;
• The Executor or Administrator did not keep accurate accounts; and
• The Executor or Administrator did not administer the estate as per the Will.

Most issues can be resolved through open and frequent communication. As the Executor or Administrator of a deceased estate it is worthwhile letting family members know what needs to be done, what you are currently working on and what the next steps are.

You may also find it useful to share this website with them, so they can learn about the process, appreciate the work you are doing for them and provide you with support rather than questioning your actions.

simplyEstate is here to help. You can contact us via email or book a phone appointment to discuss the administration or any disputes you have so you can determine the best course of action.

Remember, simplyEstate cannot provide advice as per our Terms & Conditions but can provide general guidance or help you seek the appropriate support for your situation.