Understanding the Role and Responsibilities of an Executor

Being named as an executor in a will is an important responsibility. An executor is the person entrusted with carrying out the wishes of the deceased as set out in their will. This role involves managing and distributing the estate, ensuring all legal and financial matters are addressed, and acting in the best interests of the beneficiaries.

While being appointed as an executor is often a sign of trust and confidence, many people do not fully appreciate the legal obligations that come with the role. Failing to understand or properly carry out these duties can lead to delays, disputes, or even personal liability.

This article explains the key responsibilities of an executor, what is expected of you under New Zealand law, and what can happen if those responsibilities are not met.

What Does an Executor Do?

The role of an executor begins after the death of the person who made the will (the testator). Some of the key tasks an executor must carry out include:

1. Locating the Will: The executor must locate the most recent version of the deceased’s will. If you are unsure whether the will is valid or up to date, you may need to seek legal advice.

2. Applying for Probate: If the estate includes significant assets, such as property or large bank accounts, you may need to apply to the High Court for a grant of probate. This is a formal process that confirms the will is valid and gives the executor legal authority to act.

3. Identifying and Gathering Assets: Executors must identify all assets and liabilities of the estate. This includes contacting banks, insurers, investment providers, and other relevant institutions. You may also need to arrange for the valuation of property or personal belongings.

4. Paying Debts and Taxes: Before any distribution to beneficiaries, the estate must settle all outstanding debts and obligations. This includes income tax, funeral expenses, and any other liabilities.

5. Distributing the Estate: Once debts are settled, the executor must distribute the remaining assets to the beneficiaries in accordance with the will. This can include transferring ownership of property, closing bank accounts, and dealing with personal possessions.

6. Keeping Records and Communicating with Beneficiaries: Executors have a duty to keep clear records and to keep beneficiaries informed of the estate’s progress. Transparency is essential to avoid misunderstandings or disputes.

Legal Duties and Obligations of an Executor

Under the law, executors are fiduciaries. This means they must act in good faith and in the best interests of the beneficiaries. Key obligations include:

• Acting impartially between beneficiaries

• Avoiding conflicts of interest

• Not benefiting personally unless authorised by the will or law

• Exercising reasonable care and diligence in administering the estate

These duties continue for the duration of the estate administration and apply even if the executor is also a beneficiary.

What If an Executor Breaches Their Duties?

If an executor fails to carry out their obligations, there can be serious consequences.

Examples of executor misconduct or neglect include:

• Delaying distribution of the estate without justification

• Mismanaging funds or failing to keep proper records

• Failing to apply for probate when necessary

• Withholding information from beneficiaries

• Making unauthorised distributions or payments

If beneficiaries believe an executor has breached their duties, they may:

• Request an account of the estate administration

• Apply to the High Court to have the executor removed

• Seek compensation for any financial loss caused by the breach

In some cases, an executor can be held personally liable for losses suffered by the estate or beneficiaries due to their actions or omissions.

Can You Decline or Resign as an Executor?

Yes. If you have been named as an executor but do not wish to take on the role, you can formally renounce your appointment before taking any steps to administer the estate. This must be done in writing and lodged with the court if probate is required.

If you have already begun acting as executor but wish to step down, you will need the court’s permission to do so. Legal advice should be sought in either case.

Summary

Being an executor is not just a ceremonial role. It comes with real responsibilities and legal obligations. If you have been named as an executor, it is important to approach the task carefully and seek legal or accounting advice where necessary.

Acting diligently, keeping good records, and maintaining open communication with beneficiaries will help ensure that the estate is administered smoothly and in accordance with the law.

If you have questions about your role as an executor, or if you are a beneficiary with concerns about how an estate is being managed, our team is here to help. We can advise you on your rights, responsibilities, and options at every stage of the process.