Choosing an executor for your Will
What is an executor?
An executor of a Will is a person or people who you appoint in your Will to administer your estate after you die.
What does an executor do?
An executor of a will is basically responsible for finalising the deceased person’s estate and administering the terms of the deceased person’s will in accordance with the terms of their Will and the law.
What are some of the executor’s duties?
Responsibilities of the executor will vary depending on the unique requirements of a deceased person’s estate but duties may include:
- Securing the assets of the estate;
- Ensuring all property is insured;
- Valuing the estate and itemising the valuations;
- Itemising the debts owing;
- Seeking advice from an accountant regarding income tax returns for the deceased person and the estate;
- Centrelink, if the person was receiving a pension;
- Government authorities, shire/city councils, utilities, telecommunications companies;
- Insurance companies, superannuation;
- Transport authorities regarding vehicle registration and driver’s licence;
- Obtaining a Grant of Probate if necessary;
- Paying all debts owing;
- Establishing any trusts that were created in the will;
- Distributing the estate in accordance with the will including preparing distribution statements for each of the beneficiaries.
How do you appoint an executor?
You may appoint your executor of your estate in your last will and testament.
How do you choose an executor to appoint?
An executor must be a fit and proper person and above the age of 18 at the time they act.
When considering who you appoint as executor of your Will, we think that there are two basic questions to ask:
- do you trust them to administer your estate according to your wishes and to perform the job properly; and
- will they be able to carry out the administration of your estate.
What are some factors to consider when choosing an executor?
Some important questions to ask when deciding who to choose for an executor include:
- Is your estate quite large and complex? If so, you may wish to choose an executor who has some skill or knowledge in dealing with assets similar to your estate.
- Is your selected executor younger or older than you? Ideally, you want your executor to outlive you and still be able to perform the executor duties. It may not be advisable to appoint your parents as executors if they are 90 as the likelihood is that they will pass away before you or not be able to carry out the work.
- Does your executor have some understanding of your wishes and desires? Many aspects of your estate administration may come down to an exercise of discretion by your executor (such as your burial or gifting of certain personal items). Therefore, it is ideal if your executor understands what your desires might be.
- Is your executor likely to face a conflict of interest or be subject to a bias? In some estates, family members may not get on with each other. It may not be appropriate to appoint one person to administer your estate if they do not get on with other beneficiaries of your estate. It may only inflame the administration and cause litigation.
Are there particular people that I can and can’t appoint as executor?
- For particularly complex/large estates or for estates that are likely to be litigated (for example, by disgruntled family members) then it is sometimes wise to consider appointing a professional executor. Some people choose to appoint a combination of their accountant, solicitor or a professional trustee body. We advise against asking the lawyer who is drafting your Will to also be your executor.
- Appointing a professional executor will usually involve a request by the professional person to charge their professional fees. This will usually result in the fees for the estate administration being higher than an ordinary executor being appointed.
- You can appoint family members or beneficiaries of your estate as executors.
- Executors may be entitled to apply to the court for an executor’s commission.
- Your executor should be aware of the appointment and be willing to act.
- Your executor must have testamentary capacity and not be a bankrupt.
At the end of the day, whoever you choose should be someone who is capable and who you trust. You should discuss your executor appointment with your lawyer to make sure that it is appropriate.
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