What powers does an executor of a will have?

When a will is finalised, many assume it represents the last word on how a person’s estate should be distributed.

Being appointed as an executor of a will is often seen as an honour. It reflects a high level of trust from the person who has passed away.

But what does the role actually involve?

In New South Wales, an executor has significant legal authority and responsibility when managing a deceased estate. Understanding these powers is essential to ensure the estate is administered correctly and in accordance with the law.

What Is an Executor?

An executor is the person named in a will to manage the estate of the deceased.

Their role begins after the person passes away and typically involves applying for probate, which is the formal recognition by the Supreme Court of NSW that the will is valid and that the executor has authority to act.

Once probate is granted, the executor can begin administering the estate.

What Powers Does an Executor Have?

The powers of an executor come from both the will itself and legislation, including the Probate and Administration Act 1898 (NSW).

These powers allow the executor to deal with the estate efficiently and lawfully.

1. Collecting and Managing Assets

An executor has the authority to identify, secure, and manage all assets of the estate.

This may include:

• Bank accounts
• Real estate
• Shares and investments
• Personal belongings

They can take steps to protect these assets, such as arranging insurance or securing property.

2. Applying for Probate

Before most actions can be taken, the executor has the power to apply for probate.

This legal process confirms:

• The validity of the will
• The executor’s authority to act on behalf of the estate

Without probate, financial institutions and other entities may not release assets.

3. Paying Debts and Liabilities

An executor is responsible for ensuring that all debts are paid before distributing the estate.

This includes:

• Outstanding loans
• Credit cards
• Taxes
• Funeral expenses

Executors have the power to use estate funds to settle these obligations.

4. Selling or Transferring Assets

If necessary, an executor can sell estate assets.

For example:

• Selling property to pay debts
• Liquidating investments
• Transferring ownership to beneficiaries

The executor must act in the best interests of the estate when making these decisions.

5. Distributing the Estate

Once debts and expenses are finalised, the executor has the authority to distribute the remaining assets to beneficiaries in accordance with the will.

This must be done carefully to ensure compliance with the will and relevant laws.

6. Defending or Bringing Legal Proceedings

An executor can take legal action on behalf of the estate.

This may include:

• Defending claims against the estate
• Responding to challenges to the will
• Recovering debts owed to the estate

What Are the Executor’s Obligations?

While executors have broad powers, they also have strict duties.

They must:

• Act in good faith
• Avoid conflicts of interest
• Keep accurate records
• Act in the best interests of beneficiaries

Failing to meet these obligations can result in personal liability.

How Long Does an Executor Have?

There is no fixed timeframe, but executors are generally expected to administer the estate within a reasonable period.

In many cases, this is around 12 months, often referred to as the “executor’s year”.

Delays can occur where the estate is complex or where disputes arise.

Why the Role Can Be Challenging

Administering an estate can be more complex than many expect.

Executors often need to manage:

• Legal processes
• Financial matters
• Communication between beneficiaries

They may also face pressure where there are competing expectations or disputes.

An executor has significant legal powers, but those powers come with equally important responsibilities.

The role requires careful decision-making, compliance with legal obligations, and a clear understanding of the deceased’s wishes.

How Antunes Can Help

Acting as an executor can be complex, particularly where estates involve multiple assets or potential disputes.

Antunes can assist executors in understanding their responsibilities, managing legal requirements, and ensuring the estate is administered efficiently and in accordance with the law.

Understanding your rights and acting within the required timeframes is critical.