What is an Executor

An Executor is the person or persons named in the Will to act on behalf of the Deceased after they have passed away.

An Administrator is the person appointed by the Court in the instance where a person has died without a will

One of the key differences between an Executor and Administrator is that the appointment of the Executor begins upon the date of death of the deceased person, whereas an Administrator’s authority begins once they have been appointed by the Court.

Another key difference is that the Executor is a person appointed by the Deceased, whereas an Administrator is appointed by the Court based on who is entitled to apply.

Probate

The probate is the step of officially proving the Will. This is done by way of an application to the High Court.

Probate acts as proof of the person’s role as Executor. This can then be relied upon by third parties (such as banks, Kiwisaver providers, Land Information New Zealand etc) when those third parties engage with the Executor.

The Executor has a number of duties

1. To bury the deceased

The Executor is entitled to custody of the deceased person and has a duty to bury (or cremate) the body. While that decision is at the discretion of the Executor, the Executor may take into account the wishes of the deceased and of the immediate family.

The funeral expenses are a first charge upon the Estate but it should be noted that the person who gives the instructions to the funeral home is personally liable for those costs should the Estate not have sufficient funds to meet those costs.

2. To make an inventory of the assets of the Estate

The executor should keep a record of the assets of the Estate, and must be able to provide that to the Court or to a party who is entitled to that information if requested.

3. To collect in the assets

The Executor must collect in and realise the assets of the Estate in order to meet any liabilities as well as to satisfy the provisions of the Will

4. To pay all expenses and debts

The Executor must pay all of the expenses of administrating the Estate, including valuation fees, sale costs, legal fees and other expenses. The Executor must also pay all of the deceased’s legitimate debts.

5. To pay legacies and distribute the residue of the Estate

The Executor must fulfil any bequests required under the Will (subject to the Executor’s obligations to pay any debts or expenses) and distribute the residue of the Estate in accordance with the Will

6. To Keep Accounts

In addition to the requirement to make an inventory, an Executor must keep accounts of the administration of the Estate.

7. To act even handedly

Executors must act even handedly as between beneficiaries, which can include an obligation to consider potential claimants.

8. Seek Directions from the Court

In the event that the actions that the Executor should take are unclear then the Executors have a duty to seek Directions from the Court.

Complications can arise with these duties when administering an estate. If you have any concerns about your will or an estate you are administrating, or have queries in regard to the above, please contact our team at office@totaralaw.co.nz. Special thanks to Michael Richardson for preparing this article.