When a person passes away and leaves a valid will, it is up to the executor to make the funeral arrangements, obtain a grant of probate, pay off any debts to creditors and administer the estate of the will-maker according to their wishes. Needless to say, the responsibilities and duties of the executor are quite significant, so it is important that they carry out their role appropriately.
One of the first duties that an executor must undertake is to make an application for a grant of probate to the Supreme Court. When a grant of probate is accepted, the court has recognised a valid will has been produced, and that all the associated legal formalities have been met. However, before a grant of probate can be finalised, notice must be given of the intention to apply for a grant of probate 14 days before the application is made.
A grant of probate is crucial in ensuring that title to the will maker’s property will be transferred to the executor, so that it can be collected and properly administered to the beneficiaries.
What are the duties of an executor?
The primary obligation of an executor is the proper collection and distribution of assets to any beneficiaries of the deceased. It should be noted that before an executor is in a position to distribute any assets of the deceased, the property belongs to the executor once a grant of probate is made. Furthermore, because property and assets do not belong to a beneficiary before distribution, there generally are no avenues for a beneficiary to obtain property before the executor is in the position to dispense with the assets.
What if I have problems with an executor?
There is no legal requirement that a person who is named as an executor must perform the role, and an instance may arise where a person refuses to become an executor. If another person is named as an executor, they are free to take up the role if they choose. However, if there are no other executors named in the will, then letters of administration must be obtained in order for the assets to be legally distributed.
Letters of administration are also necessary if an executor has passed away before a grant of probate. Alternatively, if a grant of probate has been made and the executor has died before the distribution of assets, then the executor of the dead executor can now become the executor of the estate of the deceased. Sounds convoluted, doesn’t it? To ensure that there’s confusion, it’s probably a good idea if more than one executor is named to ensure your assets are appropriately distributed.
Finally, if a beneficiary feels that an executor is not acting diligently then a complaint can be made to the Supreme Court before the property is distributed.
This article is by no means comprehensive regarding the role of an executor to an estate. If you have any issues relating to wills and probate, please seek the appropriate legal advice.