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Step 5 - Determine the Executor or Administrator of the Deceased Estate

Last updated: June 2019

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Why is this important?

This step explains everything you need to know about the roles of Executors and Administrators. You will determine who will take on one of these roles depending if there is a Will in place or not and who is best placed to take on this role.

 

simplyEstate is here to help with the process. Contact us via email or book a first free phone appointment.

Approximate Effort & Cost​

Reading: 20 mins
Preparing: 10 mins
Completing: 1-2 hrs
Total: 1:30-2:30 hrs
Cost: $0

Effort and cost are general estimates only and are based on the assumption that you complete this step without specialist help.

Instructions

To find out how this Process Guide works, access the instructions here.

Glossary

To find out what the capitalised words mean, access the glossary here.

Forms

Consent Form – nominated Executor who does not want to take on the duty but reserves the right to apply at a later stage

Form 123 – Renunciation of probate

Renunciation of Probate
Affidavit of Verification – Renunciation of Probate

Form 114 – Renunciation where a Will is in place and you were nominated as Executor
Form 115 – Renunciation (intestacy) where no Will is in place and you are the only Next of Kin and don’t wish to take on the duties of Administrator

Other forms not listed here may be required based on your specific circumstances.

Legislation

ADMINISTRATION ACT 1903 (WA) Section 7 (Austl.) (accessed 20/10/2018);
NON-CONTENTIOUS PROBATE RULES 1967 (WA) Rule 28 (Austl.) (accessed 20/10/2018)

PROBATE AND ADMINISTRATION ACT 1898 (NSW) Section 69 (Austl.) (accessed 20/10/2018)

ADMINISTRATION AND PROBATE ACT 1958 (VIC) Section 15 (Austl.) (accessed 20/10/2018)

SUCCESSION ACT 1981 (QLD) Section 46 (Austl.) (accessed 4/1/2018)

Legislation shown may not be comprehensive and other legislation and rules may apply to your specific circumstances.

5.1 Overview

Now that you have determined if a valid Will is in place and you have located it if one exists you should ─
where a Will exists:

  • determine who the Executor(s) named are;
  • determine if the Executor(s) want(s) to or can take on the duties; and
  • if multiple co-Executors decide to act jointly or authorise one Executor to act on their behalf.

where no Will exists:

  • determine who the Senior Available Next of Kin is; and
  • determine if the Senior Available Next of Kin has the capacity and wants to take on the duties of Administrator.

Note: If you are not the Executor nominated in the Will, it is important that you contact that person immediately to inform them of their nomination as the Executor. You may choose to share this page with that person to help with the deceased estate administration.

 

Contents
5.2 What is the Difference Between an Executor and Administrator
5.3 Duties of an Executor and Administrator
5.4 Decide if You Wish to Take on the Executor or Administrator Role
5.5 Who Administers the Deceased Estate if There is no Will (Intestate)
5.6 Will with One Executor
5.7 Will with Multiple Executors
5.8 Resign (Renounce) as Executor or Administrator
5.9 Dispute Between Executors and Next of Kin
5.10 Actions and Decisions to Complete Step

5.2 What is the Difference Between an Executor and Administrator

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.

5.3 Duties of an Executor and Administrator

As the Executor named in a Will or Administrator where there is no Will, your administrative duties are to ─

  • find the Will (see Step 4 – Locate the Will & Insurance Information);
  • arrange the transportation of the body and the funeral (see Steps 6 & 7);
  • obtain the death certificate from the State/Territory’s Registry of Births, Deaths and Marriages (see Step 8 – Apply for the Death Certificate);
  • determine the Beneficiaries and ascertain the deceased person’s assets and liabilities (see Steps 13 – 25);
  • assess the value of the deceased person’s assets (see Step 26 – Finalise Assets & Liabilities Inventory);
  • obtain probate if required (see Step 27 – Apply for Grant of Probate or Letters of Administration);
  • pay the deceased person’s debts, income tax, duties and funeral expenses;
  • distribute the assets according to the terms of the Will (see Steps 33 & 34); and
  • act in accordance with fiduciary duties.

Fiduciary duties
As an Executor, Administrator or Next of Kin you represent the deceased estate, entrusted by the deceased person where you were nominated under the Will, to hold in trust their money and other assets before they are distributed to Beneficiaries. By taking on this role you will uphold the following duties always:

  • 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.

a telephone handset to indicate that our users can make a phone consultation booking simplyEstate is here to help. Contact us via email or book your first free phone appointment.

5.4 Decide if You Wish to Take on the Executor or Administrator Role

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 specialist 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 (listed in the yellow section to the right or below).

 

Important considerations when deciding to accept to act as the named Executor or as Administrator are that ─

  • 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.

5.5 Who Administers the Deceased Estate if There is no Will (Intestate)

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.

 

Next of Kin is not defined by law in Australia. The deceased person’s Next of Kin will likely be considered in this order of priority:

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

5.6 Will with One Executor

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.

5.7 Will with Multiple 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 5.9 below.
If you want to authorise one of the Executors to act on everyone’s behalf, then you can follow the process outlined below by clicking on the relevant State/Territory:

Supreme Court of Western Australia

Phone: 08 9421 5333
Contact Hours: Monday – Friday, 8:00am – 4:00pm AWST
Address/Post: Supreme Court of WA, Level 11, David Malcolm Justice Centre, 28 Barrack Street, Perth WA 6000

 

Process
If it was agreed that one Executor will take over the duties, then that Executor can formalise the arrangement with the Supreme Court of WA in Step 27 – Apply for Grant of Probate or Letters of Administration.

 

During the online application process for Grant of Probate, the applying Executor will provide information of each Executor nominated in the Will and then indicate if each Executor is applying to be Executor or not. The Executor can indicate whether the Executor who does not want to take on the duties is reserving leave, meaning they could apply at a later stage, or fully resigning (also called renouncing) which is further explained below in Step 5.8 below.

 

For complicated applications and when in doubt, it is recommended to seek legal advice. simplyEstate partners with law firms that specialise on this task and can be found in the yellow section to the right or below.

 

Relevant documents
The Executors who will hand over their duties to another Executor will need to provide the following document to the Executor taking on the duties:

  • Consent Form – nominated Executor who does not want to take on the duty but reserves the right to apply at a later stage. Keep a copy of the document for your records.

Website
Supreme Court of WA, Frequently Asked Questions can be accessed here.

 

Relevant Legislation
ADMINISTRATION ACT 1903 (WA) Section 7 (Austl.) (accessed 20/10/2018)

Refer to Step 5.8 – Resigning (renouncing) as Executor or Administrator below if you want to renounce your right as Executor.

Relevant Website
Read about ‘Executors not able to act’ here.

Refer to Step 5.8 – Resigning (renouncing) as Executor or Administrator below if you want to renounce your right as Executor.

Refer to Step 5.8 – Resigning (renouncing) as Executor or Administrator below if you want to renounce your right as Executor.

5.8 Resign (Renounce) as Executor or Administrator

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.

 

If no secondary (also referred to as substitute or alternative) Executor is nominated in the Will, then ─

  • 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:

Supreme Court of Western Australia

Phone: 08 9421 5333
Contact Hours: Monday – Friday, 8:00am – 4:00pm AWST
Address/Post: Supreme Court of WA, Level 11, David Malcolm Justice Centre, 28 Barrack Street, Perth WA 6000

 

Process – Online
The renunciation of executorship is formalised with the Supreme Court at the time when the Executor who agreed to take on the duties applies for a Grant of Probate (see Step 27 – Apply for Grant of Probate or Letters of Administration).

 

Where multiple Executors were nominated in the Will, all Executors’ details will be recorded on the online lodgement portal and the relevant options selected. The renunciation option will then trigger the necessary document that will need to be signed by the Executor who wished to renounce or resign.

 

Where only one Executor was nominated in the Will, the following two options are available when not wanting or not being able to take on the Executor duties:

  • Complete the below Consent Form together with an affidavit requesting reserved leave and lodge with the Supreme Court. This will mean that the Supreme Court was informed of the reserved leave and that someone else can administer the deceased estate. The original Executor could still take on the duties at a later stage by informing the Supreme Court.
  • Complete the below Consent Form and forward to the person who will take on the deceased estate administration. The form will not result in renunciation but reserved leave from your duties, meaning you could take on the Executor role at a later stage. Make sure to keep a copy of the form for your records.

Affidavits

You must swear or affirm your Affidavit(s) in front of a:

Justice of the Peace;

  • a practicing lawyer with a current certificate; or
  • an authorised witness at the Supreme Court Probate Office when lodging the application.

You and one of the above listed witnesses must sign:

  • each page of the Affidavit;
  • the final page of the Affidavit; and
  • the cover of the Will.

You should check with the Supreme Court for further information or seek legal advice to complete the affidavit. simplyEstate partners with specialists across Australia listed in the yellow section to the right or below.

 

Relevant Documents
You will need to provide the following documents or as requested by the Supreme Court:

  • Consent Form – nominated Executor who does not want to take on the duty but reserves the right to apply at a later stage.
    • Affidavit to reserve leave

Relevant Legislation
NON-CONTENTIOUS PROBATE RULES 1967 (WA) Rule 28 (Austl.) (accessed 20/10/2018)

Supreme Court of New South Wales

Phone: 1300 679 272
Opening Hours: Monday – Friday, 8:30am – 4:30pm AEST
Email: [email protected]
Address: Law Courts Building, Level 5, 184 Phillip Street, Sydney NSW 2000
Post: Supreme Court of NSW, GPO Box 3, Sydney NSW 2001

 

Process – Paper
The following documents and templates can be used for a paper-based submission.

For complicated applications and when in doubt, it is recommended to seek legal advice. simplyEstate partners with law firms that specialise on this task and can be found in the yellow section to the right or below.

 

Relevant Documents
You will need to provide the following documents or as requested by the Supreme Court:

  • Form 123 – Renunciation of probate

Instructions
Read how to complete a renunciation form here.

 

Relevant Legislation
PROBATE AND ADMINISTRATION ACT 1898 (NSW) Section 69 (Austl.) (accessed 20/10/2018)

Supreme Court of Victoria

Phone: 03 9603 9300 (option 1 for Probate and Wills)
Opening Hours: Monday – Friday, 9:30am – 4:00pm AEST
Email: [email protected]
Address: Level 2, 436 Lonsdale Street, Melbourne Victoria 3000
Post: Probate Office, Supreme Court of Victoria, 210 William Street, Melbourne Victoria 3000

 

Process
The relevant documents must be completed and filed with the Probate Office of the Supreme Court in person.

For complicated applications and when in doubt, it is recommended to seek legal advice. simplyEstate partners with law firms that specialise on this task and can be found in the yellow section to the right or below.

 

Affidavits

You must swear or affirm your Affidavit(s) in front of a:

  • Justice of the Peace;
  • a practicing lawyer with a current certificate; or
  • an authorised witness at the Supreme Court Probate Office when lodging the application.

You and one of the above listed witnesses must sign:

  • each page of the Affidavit;
  • the final page of the Affidavit; and
  • the cover of the Will.

Relevant Documents
You will need to provide the following documents or as requested by the Supreme Court:

Relevant Legislation
ADMINISTRATION AND PROBATE ACT 1958 (VIC) Section 15 (Austl.) (accessed 20/10/2018)

Supreme Court of Queensland

Phone: 07 3236 1855
Opening Hours: Monday – Friday, 9:00am – 4:00pm AEST
Email: [email protected]
Address: QEII Courts of Law Complex, 415 George Street, Brisbane Qld 4000
Post: PO Box 15167, City East Qld 4002

 

Process – Paper
The following documents and templates can be used for a paper-based submission.

For complicated applications and when in doubt, it is recommended to seek legal advice. simplyEstate partners with law firms that specialise on this task and can be found in the yellow section to the right or below.

 

Relevant Documents
You will need to provide the following documents or as requested by the Supreme Court:

  • Form 114 – Renunciation where a Will is in place and you were nominated as Executor
  • Form 115 – Renunciation (intestacy) where no Will is in place and you are the only Next of Kin and don’t wish to take on the duties of Administrator

Website
QLD Government

 

Relevant Legislation

SUCCESSION ACT 1981 (QLD) Section 46 (Austl.) (accessed 4/1/2018)

5.9 Dispute Between Executors and Next of Kin

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.

 

Some common examples of complaints and disagreements are:

  • 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.

5.10 Actions and Decisions to Complete Step

If you would like a little help from us at simplyEstate with this Step, you can email us or book your first free phone appointment. If you would like specialist help, get in touch with one of our Specialist Partners listed in the yellow section to the right or below and see how they can help.

 

If you have decided to tackle this Step yourself after reading and understanding this Step, you may want to:

  1. Read carefully the duties of an Executor and Administrator;
  2. Determine who the Executor(s) named in the Will are, where a valid Will is in place;
  3. Determine who the likely Administrator will be, where no valid Will is in place;
  4. Agree which Executor(s) named in the Will want to or can take on the duties solely or jointly and follow the process outlined in Step 5.7; and
  5. Complete the necessary paperwork if Executor(s) who are named in the Will want to renounce their executorship.

Once you have completed all the necessary actions and decisions, you can move on to the next Step by clicking below or save progress at the top.

Next Step - 6 Organise Transportation of the Body >

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