Acting as the executor or administrator of a deceased estate is very serious duty. There are many important steps you will need to take to properly complete the administration of the estate.
An executor in Western Australia holds the deceased’s estate on trust and must collect the assets, pay the debts and funeral expenses, obtain a grant if one is needed, file an inventory and pass the accounts, then distribute what is left to the beneficiaries named in the Will. The duties of an executor run until the last asset is distributed.
Does an executor’s authority come from the Will or from the Court?
Your authority comes from the Will. You are executor from the moment the person dies and you can start protecting the estate straight away without waiting for anything from the Supreme Court of Western Australia. A Grant of Probate proves the Will and confirms your appointment so that banks, share registries and Landgate will deal with you.
The practical effect is that insuring the house, collecting the keys and stopping automatic payments are all things you can do in the first week. See Protecting assets: an executor’s first steps in WA
Do you need a Grant of Probate?
Not every estate needs a grant. Whether you need one depends on what the deceased owned and on the rules of the institution holding each asset. The major banks generally require a grant once the accounts they hold are above $100,000 and each of them reserves a discretion to ask for one below that figure. Land held in the deceased’s sole name always needs a grant, because Landgate will not register a transmission application until Probate or Letters of Administration has issued.
The earliest an application can be made is 14 days after the date of death. If you’re not sure whether the estate needs a grant at all, start with Do you need a grant?
What is the difference between an executor and an administrator?
An executor is named in the Will. An administrator is appointed by the Court if there’s no Will or if the Will names nobody who is willing and able to act.
| Executor | Administrator | |
|---|---|---|
| How appointed | named in the Will | appointed by the Supreme Court of Western Australia |
| Authority starts | at the date of death | at the date of the grant |
| Grant applied for | Grant of Probate | Letters of Administration |
| Who may apply | the executor named in the Will | a person entitled in distribution (a beneficiary) or, failing them, any other person |
| Surety guarantee | rarely required | may be required, for example if a beneficiary is under 18 or lacks capacity |
If there’s no Will, see Letters of Administration
What does collecting the assets involve?
Collecting the assets means bringing everything the deceased owned into your control or into an estate account. You notify each bank, insurer, share registry, superannuation fund and government agency of the death, obtain a date of death balance or valuation for each asset and close or transfer accounts once the grant issues.
Which debts do you pay and when?
The debts and the funeral expenses are paid out of the estate before any beneficiary receives anything. You also have to lodge any outstanding tax returns for the deceased with the Australian Taxation Office and lodge returns for the estate itself if it earns income during the administration. If you distribute before the tax is paid, you can be left carrying it personally.
You don’t have to advertise for creditors, although you can and doing so buys you a specific immunity, so it is recommended. It doesn’t protect you against a family provision claim, which is a separate risk and the reason for the six month period below. See How executors protect themselves from claims in WA
Do you have to file an inventory and pass the accounts?
The Administration Act 1903 (WA) requires you to file an inventory of the estate and to pass your accounts relating to it. In practice though, this is only done on the request of a beneficiary or the Court.
Nevertheless, you must keep receipts, bank statements and a running record from day one showing everything that has come into and out of the estate.
See What is passing of accounts in Western Australia?
When can you distribute the estate?
You can distribute once the debts, tax and the costs of administration are paid and you’re satisfied that nobody is going to bring a claim against the estate. An eligible person has 6 months from the date of the Grant in Western Australia to bring a family provision claim. The Court can give leave to file out of time at any time, which means a person can apply to the Court for an extension to this timeframe.
When does an executor’s job end?
Your job ends when the last asset has been distributed and nothing is left in the estate. If an asset surfaces afterwards, a forgotten shareholding or a refund from an insurer, you’re still the executor and you deal with it.
Frequently asked questions
Can you refuse to act as executor?
Yes, if you haven’t already started dealing with the estate. Once you’ve intermeddled you’re taken to have accepted the office.
Can you be personally liable?
Yes. You can be liable to a creditor you paid nothing to, to a beneficiary who received less than they should have and to the ATO for tax you distributed away.
Do you get paid for acting as executor?
No, not simply for holding the office. You can be reimbursed for expenses you properly incurred and you can be paid for your time only if the Will authorises it, the beneficiaries agree or the Court orders it. See What an executor is entitled to be paid in WA
How long does a grant take?
The Supreme Court publishes that it “aims to process applications within four weeks of receiving applications although complex applications may take longer and the process may be delayed from time-to-time.” In our experience, most grants issue within four to six weeks.
Talk to us about your duties as executor
We act for executors and administrators across Western Australia, from a grant application on its own through to running the whole administration and passing the accounts. Call us on (08) 9220 4490 or read more at Estate administration
Related: Do you need a grant?
This article is general information about the law in Western Australia and is not legal advice.
