Behind every successfully managed estate is an executor helping a loved one’s wishes come to life. Photo: FabioBalbi.
When someone dies, it’s easy to assume their affairs will be settled quickly and quietly. There’s a will, loved ones are named, and somehow everything ends up in the right hands. In reality, a legal process sits between death and distribution — and for the person tasked with managing it, that gap can feel daunting.
That’s usually when people realise they don’t actually know what they’re meant to be doing.
According to DDCS Lawyers partner Theresa Dowling, for most estates, the first step comes down to a single question: Do you need probate?
A grant of probate is a legal document issued by the Supreme Court that confirms a will is valid and authorises the executor to manage and distribute the estate.
“If the deceased did not own anything of significant value, you may not require a grant of probate,” Ms Dowling says. “The types of assets that usually necessitate a grant include property, bank accounts, super funds and refundable accommodation deposits from some retirement villages.”
If probate is required, it gives the executor legal authority to act on behalf of the deceased and manage their assets.
It’s a job that carries heavy responsibility, Ms Dowling says.
“You’re the top dog in the task of wrapping up that person’s estate,” she says. “Effectively, every estate is a trust and the executor is the trustee.”
That means identifying and collecting assets, paying any debts or liabilities, including tax obligations, and distributing the remainder in accordance with the will.
Probate is not just a ticket to carrying out a loved one’s wishes; it’s also protection for how you go about it.
Ms Dowling says acting without it could leave an executor personally liable for loss or damage to beneficiaries.
“With a grant of probate, they have the same ordinary protections and indemnities as a trustee, including the ability to cover legal costs from the estate without personal risk,” she says.
DDCS Lawyers partner Theresa Dowling says the job of the executor can be more work than people realise, but they’re not alone. Photo: DDCS.
While the process is similar in the ACT and NSW, it’s worth noting that location matters.
“Because of the federal system, if you have immovable assets or are domiciled in the ACT, that’s generally the appropriate place to get a grant of probate,” Ms Dowling says. “But sometimes you need the grant in one jurisdiction and the reseal of the grant in another — for example, if your primary place of residence is in the ACT but an investment property is in Queanbeyan (NSW).”
For some estates, the process is straightforward — a surviving spouse may be the executor who simply ensures all bills are paid and assets transferred to their name.
Putting aside cases where there is no will at all, others can be far more complex, involving defending claims, protecting assets from litigation or negotiating settlements.
And where there is a will, any ambiguities or poor drafting may require the executor to apply to the court for construction or rectification.
“The executor would do that so they can’t be criticised for the way they interpret the will,” Ms Dowling says.
“It can be a bigger job than many people realise, and it’s not much fun. But at the end of the day, our job is to make it as simple and stress-free as possible for an executor who’s probably already going through a tough time of grief and loss.”
Fortunately, executors are not alone in this process.
Ms Dowling says executors who are uncertain about the role or next steps should seek advice early.
“Doing so puts you in a far better position than trying to stumble through it alone, and ensures the deceased’s wishes are carried out correctly and responsibly,” she says.
For more information, visit DDCS Lawyers.
