Legal Hypothetical: Demystifying executorial responsibilities


JOHN is named as executor in his late father’s will.

He seeks legal advice regarding his role and is advised that an executor has the right to make the funeral arrangements.

The funeral account can be paid from his father’s savings account and after the payment is made, the account will be frozen.

The power of attorney that John held prior to his father’s death is invalid after the date of death.

If there is a substantial amount remaining in the savings account, the bank may require a grant of probate to release the funds.

A grant of probate will also be necessary to deal with real estate and other large assets.

Otherwise, there is no requirement that a grant of probate is obtained.

The solicitor advises John that the costs of the solicitor acting on his behalf in relation to obtaining a grant of probate are regulated with reference to the sliding scale, based on the value of the net assets of the estate at the date of death. Any assets that are held jointly with another person are not included.

The probate costs are a liability of the estate and can be paid once sufficient funds are realised to do so.

John is advised that as executor, he is responsible to finalise his father’s tax affairs and that if he does not do so, and tax is in fact outstanding, he may be personally liable.

To be protected from other creditors, the solicitor must advertise his intention to distribute the estate and the estate cannot be distributed before the expiry of six months from the date of death.

John is advised that he has a duty to keep accounting records and that the solicitor’s trust account can be used to ensure proper records are kept.

John is advised of his duty to insure the assets of the estate until distribution.

If YOU would like a particular issue addressed, please email Manny at [email protected] or call him on (02) 6648 7487.


By Manny WOOD, Solicitor

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