Probate 101 (Part 1): Executor’s Duties

Being chosen as an executor is both an honour and a responsibility. One cannot underestimate the obligations involved in being appointed as an executor. To put it simply, as an executor, you will be administering the deceased’s affairs, i.e. payment of estate debts and expenses, as well as distributing the deceased’s assets and properties. 

Before we dive into what are the duties of an executor, we must first understand who an “executor” is. Section 2 of the Probate and Administration Act 1959 defines an executor as:

“A person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided and includes a person deemed to be appointed executor as respects settled land”

In other words, an executor is a person appointed by the maker of the Will (a.k.a. the Testator) to be responsible for the management and distribution of assets to the beneficiaries; a heavy burden on one’s shoulder to say the least. It is crucial for the Testator to appoint someone who is trustworthy, reliable and adequately skilled to take on the role of an executor for one’s Will. This background requirement also helps in ensuring future efficacy in the administration and distribution of the Testator’s estate.

When does an Executor’s duty arise?

An executor derives his/her title and authority from the Will. However, in the practice sense, most of the probate administration process would require the executor to produce the Grant of Probate to validate his/her appointment as an executor. As such, it is always advisable for the executor to apply for the Grant of Probate as soon as possible upon the coming into effect of the executor’s duties. This may help prevent potential disputes arising from the claims and interests of beneficiaries and/or creditors.

The Executor’s Duties

So, an executor’s primary role is to ensure that all the wishes in the deceased’s Will are fulfilled. The duties of an executor include: 

(1) Locating the Will

This is the first thing that an executor has to do before applying for the Grant of Probate is to find the original copy of the Will. Of course, it is always best for the executor to have discussed the details of the Will and aspects of the estate administration with the Testator before his/her passing to ensure a smoother probate process.

(2) Engaging with a lawyer to apply for a Grant of Probate from the High Court

After locating, reading and understanding the Will, the executor is advised to engage a firm of solicitors to assist in the application for a Grant of Probate in the High Court.

Such application usually takes around 3 to 6 months, depending on the speed of the relevant Court in processing the application, and whether or not there are other issues surrounding the Will.

(3) Calling in assets and determine liabilities

You will have to take possession of all the properties, notify the banks, credit card companies about the deceased’s death. You may have to set up a separate account specifically for the purpose of administrating the estate.

It is advisable not to mix the estate monies with your own personal monies. It is also advisable to place an advertisement inviting creditors to submit their claims if you are dealing with medium-sized or large estates. While there is no legal duty for you to do so, it is wise and prudent to have it done. 

(4) Determining the beneficiaries

First things first, determine and identify all the beneficiaries to the estate in the deceased’s Will. The executor has to determine the properties and assets bequeathed to each beneficiary and see to the fulfilment of all testamentary conditions to qualify the respective beneficiary to his/her entitlement.

(5) Paying off the deceased’s debts and liabilities

One of the principal duties of an executor is to pay off the deceased’s debts (see section 68(2) of the Probate and Administration Act 1959).

Distributing the deceased’s assets and properties to the beneficiaries without providing for the liabilities due and owing by the deceased at the time of death may be deemed a breach of trust on part of the executor. Hence, the payment of the deceased’s debts must be done before the assets are distributed in accordance with the Will.

Priority must be given to funeral expenses, legal expenses (testamentary), statutory obligations (e.g. unpaid income tax and capital gains tax) and any other outstanding debts or loans.

(6) Distributing the assets in accordance to the terms in the Will

The executor is (of course) expected to read and understand the contents of the Will to find out the Testator’s intentions and wishes. The executor can always seek legal advice to help in the interpretation of the Will before administering the estate.

(7) Keep a complete inventory and accounts of the estate

When the administration of estate comes to an end, it is the final duty of the executor to prepare an administration account (i.e. accounts for all monies received and disbursed during the estate administration period) in order to fully discharge his/her duties as an executor.

Conclusion

An executor’s job can be as easy or as challenging as the executor set out for him/herself. It is always advisable for an executor to seek legal advice to fully understand one’s duty, as well as to prevent any unwitting mismanagement of the estate.

The good news is, executors appointed are free to decline the position or to resign at any point of time. All that is needed is some sound legal advice to ensure that processes are not hampered due to such change in arrangements.