Trustee Obligations:

As an executor you are responsible for the administration of a deceased estate. The position of executor is clothed with certain responsibilities and duties that are owed to the Court, statute and to beneficiaries under the will. Breach of your executor duties can have very dire consequences and this may include delay, wasting estate assets (the tort of devastavit), breach of your fiduciary duties and failure to disclose or account for expenses. Consultation with a qualified Wills and Estates Lawyer may be necessary to obtain sound legal advice regarding your circumstances, your rights, liabilities and obligations.

In general the executor's duties consist of collecting the estate, realising assets, paying out creditors of the estate and distributing the surplus among the beneficiaries. Generally, this task must be performed usually within one year from the date of the testator's death; otherwise you might be subject to some form of liability.  A Wills and Estates Lawyer will be able to properly advise you of your obligations to ensure that you discharge your obligations as an executor properly and minimise the risk that you might be subject to liabilities for breach of those duties.

The office of executor is akin to that of a trustee, as there are certain fiduciary duties that are owed by an executor to the beneficiaries and to the court. The Trustee Act 1925 (NSW) applies, and sets out at statute the rights and powers of a trustee. This includes the power of sale, the power to invest, the power of appropriation and the power to carry on business. There is an obligation to act in good faith for a proper purpose and not to profit from the position of executor, either through self-dealing or self-profit.

In addition, there are powers vested in the executor which go beyond that of a trustee, notwithstanding the fact that there might not be an express power conferred by the will. Where a power given by the will is incomplete, or non-existent, and is not a power which could be considered incidental to the executor's powers to administer the estate, then application may need to be made to the Probate Court for additional powers. Professional advice from a legal firm with experienced Wills and Estates Lawyers may be able to provide useful assistance in this complex, diverse area of law.

If you would like further information or wish to discuss your matter with us please do not hesitate to contact us by telephone on (02) 9233 4048 or by email to info@navado.com.au. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.