Executor Hub

Executor of a Will frequently asked Questions

1.     What power does an executor of a will have in Australia?

–        An executor has the legal authority to administer the deceased’s estate.

–        Their powers include:

                                                    i.     Collecting and managing assets.

                                                   ii.     Paying debts and taxes.

                                                 iii.     Distributing the estate according to the will.

They must act in the best interests of the beneficiaries and follow the terms of the will.

2.     Who is the best person to be executor of a will?

–        The best executor is someone who is trustworthy and organised.

–        They should also be able to handle the responsibilities involved. This could be a family member, close friend, or a professional such as a lawyer or an accountant.

–        It is important for a person to know the duties of an executor. This role needs careful attention and good communication skills.

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3.     Can a beneficiary be an executor of a will

–        Yes, a beneficiary can serve as an executor of the will. This is common. However, they must not put their own interests above those of the other beneficiaries.

4.     Do executors have to keep beneficiaries informed?

–        Yes, executors must inform beneficiaries about the progression of the estate administration upon request.

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5.     Can an executor use a deceased bank account?

–        Executors can access the deceased’s bank accounts to settle debts and manage the estate. They must act within their authority.

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6.     How long does an executor have to settle an estate in Australia?

–        There is no set time required by law. However, the executor usually needs to settle the estate in 12 to 24 months. Complex estates may take longer, but executors should strive to complete the process efficiently.

7.        How much does an executor of a will get paid in Australia?

–        Executors in Australia can receive payment for their work. They usually receive payment based on a percentage of the estate’s value or an hourly rate.

–        In NSW, executors can be paid commission, or compensation, for their work in administering an estate. This can be done in accordance with the terms of the Will or by applying to the NSW Supreme Court. The court can award commission based on a percentage of the estate’s value, typically between 1% and 3.5% of the corpus (assets less liabilities) and a percentage of income generated.

–        How Executors Get Paid in NSW:

                                                    i.     Will Provision: The will can explicitly state that the executor will be paid a specific amount or a percentage of the estate.

                                                   ii.     Court Application: If the will doesn’t address payment, the executor can apply to the NSW Supreme Court for a commission.

                                                 iii.     Agreement with Beneficiaries: If all beneficiaries agree, they can also agree on the commission.

1.     Factors Influencing Commission:

a.     Complexity of the estate:

b.     More complex estates with significant assets or disputes may warrant a higher commission.

c.     Executor’s efforts:

d.     The court considers the time and effort the executor has put into administering the estate.

e.     Professional assistance:

                                                                                                                i.     If the executor has relied on professional help (e.g., solicitors), this may be taken into account.

f.       “Pains and troubles”:

g.     The court considers the responsibilities, anxiety, and work involved in administering the estate.

                                                                                                                i.     Commission Calculation:

                                                                                                               ii.     Capital (assets):

–        Commonly, the commission is calculated as a percentage of the gross value of the estate’s assets.

–        Income:

–        Commission may also be calculated as a percentage of any income generated during the administration.

–        Key Considerations:

                                                    i.     Application to the Court:

1.     An executor must apply to the NSW Supreme Court for a commission if the will does not address it.

                                                   ii.     Detailed Records:

1.     When applying, the executor needs to provide detailed records of the work performed and the time spent.

–        No Set Scale:

                                                    i.     There is no set scale for commission under the Probate and Administration Act 1898 (NSW), and each application is decided on its merits.

–        Beneficiaries’ Consent:

                                                    i.     In some cases, the consent of all beneficiaries may be needed.

 8.     Can there be two executors of a will?

–        Yes, someone can appoint two or more executors. However, this can complicate the process, so they need to be people who get along and can work together.

9.     Who to pick as will executor?

–        choose someone who is responsible, trustworthy, and willing to serve. Discuss the decision with the potential executor beforehand.

10. Can I withdraw money from a deceased person’s bank account?

–        Generally, no. Withdrawals should occur only after the executor has received probate.