Part 2 of 3
The executor is a person who will oversee the probate of a deceased person’s estate. Many people name their spouse or adult child as the executor. It’s possible to name more than one person to serve as executor; however, this can create complications and delays if the two co-executors disagree.
When a person dies, the first thing that must happen is for the executor named in the Will to bring an application for the grant of probate. Probate is the process by which the validity of the Will is formally recognised, as a result of which the executor is authorised to begin to administer the estate.
The executor obtains probate by making an application to the Probate Office of the Supreme Court of Victoria. The executor is specifically named in the Will and takes control over all the property (both real estate as well as personal chattels), holding it on trust until he or she distributes it to the persons or entities that you intend. For this reason, it is very important that you only choose someone that you trust completely to fulfil this task.
If a person has died without a Will, or a Will naming an executor, or if the executor cannot act for some reason, another person such as a major beneficiary under the Will can apply for letters of administration with the Will annexed. If granted, they would then have the same powers to disperse your property as the executor normally would.
How can a solicitor help with my Will?
It is wise to involve your solicitor whenever you want to make changes to your Will or draw up a new one. Your solicitor can:
- Ensure your Will is valid and that it is properly drawn up, signed and witnessed;
- Ensure you’ve expressed your wishes in the best possible way, so nothing is left to chance;
- Advise you on how to provide for your spouse or de facto partner, children and other dependents. They’ll also let you know about your rights and obligations to former partners and other family members;
- Advise you on tax planning, including the best way to minimise any potential capital gains tax from the gifts you’re making;
- Give you a thorough understanding of the role of your executor and trustee and help you choose appropriate ones;
- Overall, advise you on the best way to arrange your estate; and
- Store your Will in a safe place.
For more information about executors and administrators, please contact Angela Catanzariti, Lynda Lim or Steven Dangerfield at Dangerfield Exley Lawyers or call 13 20 22.
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