Duties of an Executor

An executor is appointed through a will or other testamentary document, and their role must be clearly specified in the will. The general duties of an executor include:

• Arranging the Funeral: While this is often managed by the family, the executor may need to oversee or facilitate the arrangements.
• Collecting, Maintaining, and Protecting Assets: Safeguard and manage the assets of the estate until they are distributed.
• Applying for Probate: If required, obtain probate of the will to validate its legitimacy.
• Investing Assets: Manage and invest assets if necessary to preserve their value.
• Paying Debts and Expenses: Settle any debts, funeral costs, and testamentary expenses.
• Insuring Assets: Ensure that estate assets are properly insured.
• Tax Obligations: Obtain a tax file number for the estate, file tax returns, and ensure compliance with tax laws.
• Setting Up Trusts: Establish any trusts specified in the will.
• Distributing the Estate: Distribute the estate according to the instructions in the will.

Duties of a Testamentary Guardian

Australian law permits parents to appoint a guardian for their children under 18 through their will. While specific legislation varies by state, the key principles are generally consistent:

• Nomination and Acceptance: If a parent names a guardian in their will and the guardian agrees, they will have the authority and responsibility for the child’s welfare and upbringing.
• Rights and Powers: The guardian will have the same rights and powers as an adult regarding the child’s care.
• Financial Provision: Guardians do not automatically receive payment for their duties. It is advisable to consider making financial provisions or allowing access to funds for the guardian.

Claims Against Deceased Estates

Deceased estates may be subject to various claims, the most common being those made by family members who believe they have not been adequately provided for in the will. This type of claim is often referred to as a ‘testator’s family maintenance claim’.

In South Australia, such claims are governed by the Inheritance (Family Provision) Act 1972. Eligible claimants include:

• Spouses: Lawful, de facto, and divorced spouses.
• Children: This includes natural, adopted children, and stepchildren who were financially supported by the deceased.
• Grandchildren: Under certain conditions.
• Siblings and Parents: Those who have contributed financially to the deceased.

Important Note: It is not possible to completely exclude claims through a will. However, strategies can be employed to minimize the potential impact of such claims:

• Asset Management: Keep certain assets outside the estate, such as superannuation.
• Documenting Decisions: Maintain a written record explaining any decisions that might be viewed as inequitable.
• Communication: Where appropriate, discuss your estate plans with affected family members to manage expectations.

These measures can help ensure that the administration of the estate and guardianship responsibilities are handled smoothly and in accordance with your wishes.