australian disputed wills lawyers  

Executors Duty - Contested Probate Solicitors

LAWYER HELPLINE: 1800 455 886

A Grant of Probate is a document that vests the personal representative of the deceased, appointed under a will, with the legal authority to manage the deceased's estate. An executors duties can only be carried out under the authority of a grant of probate. The person appointed can be almost anyone including a friend or a relative of the deceased however it is not uncommon for a testator to appoint a bank, an accountant or solicitor. When the appointee is a family member, friend or other lay member of the public, the assistance of a probate solicitor is often sought to ensure that the executors duty is properly discharged by an experienced professional person.

When an individual writes and signs a will they usually have a trusted friend or relative in mind to carry out the executors duty and deal with their affairs after they have gone. The person appointed under a will to take on this responsibility is the executor (there may be more than one appointed) and that person has a particular role to play which comes with responsibilities and legally enforceable duties. Most individuals who are appointed as executors do not deal with the administration of the estate themselves but employ a specialist probate solicitor to deal with the executors duties on their behalf.

Our specialist wills and probate solicitors deal with contested and disputed cases. Our solicitors will make application to dismiss an executor or administrator for failing to properly carry out an exceutors duty where necessary. If you would like initial advice at no cost, just complete the contact form or email our offices or use the helpline and a solicitor will speak too you on the phone, with no further obligation.

Time Consuming Duty

An executors duties are time-consuming and can involve complex legal and financial issues. A solicitor can be instructed by the deceased's personal representative to act in the roll of executor, ensuring that the necessary steps are taken and reducing the chances that legal action will be brought by an unhappy beneficiary.

Grant of Probate

The proposed personal representative must obtain a Grant of Probate before they can begin fulfilling the duty of an executor. The application process starts with a complete financial assessment of the deceased's estate. All of the deceased's assets must be valued and any liabilities and outstanding debts must be calculated. This financial accounting is then submitted along with the original will. In addition, the proposed executor must swear an affidavit containing the relevant details about the deceased's death and estate. If the documentation submitted is satisfactory a Grant of Probate will be issued giving authority for the executors duties to be carried out.

Executors Duty

Once the application process is complete and a Grant of Probate has been issued, the role of executor can begin. The executor duties start with the appointed person collecting and where necessary liquidating the assets of the deceased, such as calling in the balance on bank accounts and selling real property. Before any assets can be distributed to the beneficiaries of the will, all of the deceased's debts, liabilities and taxes must be paid. The remaining assets are then distributed according to the instructions set forth in the will. Throughout the process an executors duty carries with it serious responsibilities and the person appointed is personally responsible for seeing that all taxes are paid and that the beneficiaries receive their inheritance.

Application to the Court

The executor derives power from the will itself however in order to obtain a Grant of Probate, the executor must submit various documentation to the court including a sworn affidavit together with an itemised estimate of the testators assets and liabilities. The court thereafter considers the documentation and in the absence of reasons to do otherwise, issues the Grant of Probate to the executor. The court appointed executor is then in a position to carry out their legal duty by calling in the liquidated assets and paying out the estates creditors, before distributing the estate in accordance with the wishes of the deceased.

Duty of Care

As part of an executors duties they must act in the utmost good faith regarding the beneficiaries to whom the executor owes a duty of care. If a beneficiary believes that an executor is not discharging the legal duties and responsibilities properly or is acting in bad faith or is dishonest, an application can be made to the court to dismiss and in that situation the court will appoint a new executor. It must be said that the courts are reluctant to follow this course of action and strong evidence of misbehaviour is necessary to dismiss an executor.

Solicitors Legal Consultation

Our specialist probate solicitors deal exclusively with wills and probate matters. Our solicitors and lawyers have the courtroom skills necessary to take on cases of contentious probate and disputed wills and are qualified to handle cases where the validity of the will is being challenged or where a person not included in the will is making a claim to the estate. Contact us today for free legal advice about your case. There is no charge for this initial consultation and you are under no further obligations to use our solicitor services.

HELPLINE: 1800 455 886