Can the Executor change what is in the will?
Why cant I get my money straight away?
The role of Executor of a Will is divided into several related functions, such as:
- To establish exactly the assets and liabilities of the estate of the deceased (the Testator);
- To apply for Probate when and if required;
- To pay all debts of the estate, as a first charge on the assets, and;
- To distribute the estate in accordance with the stated wishes of the Testator, within his/her Will.
What some Executors do not appreciate is that they have no discretion to vary the terms of the Will, such as changing how it is to be distributed, without leave of the Supreme Court. In some cases, Executors decide to change a distribution in terms of an agreement reached between all the beneficiaries and to accept a Deed of Indemnity by all the beneficiaries. Those agreements should be sanctioned by the Supreme Court if they are to be relied upon.
However, the estate is vulnerable to any claims by aggrieved, eligible parties for 6 months, if Probate has been obtained and no prior notices of intention to claim are received and otherwise for 9 months, from the date of death in Queensland. If the Executor distributes before then the Court may hold the Executor personally liable for money awarded to the claimant.
The Executor is also liable for the debts of the estate if they are not paid, unless the estate is insolvent, as sometimes happens. If the estate is insolvent, great care is required. For any enquiry about Executorship, Probate or Administration of a Deceased Estate, please call Philip or Amanda at our office on 07 55305 700