An important part of making a Will is deciding who should act as the executor of your estate. Your executor will have the responsibility of applying for probate and then administering and distributing your estate in accordance with the provisions of your Will.
Although there are no special qualifications required to be an executor having the time and willingness to undertake the role of executor is important. It can be an onerous role that can take many months, even years to complete.
Usually the executor will be a family member or trusted friend or advisor.
The role of an Executor
The duties of an executor can include:
- Locating your Will
- Making funeral arrangements and paying funeral expenses
- Identifying your assets and liabilities
- Collecting, administering and attending the sale of your assets
- Determining beneficiaries and advising them of their entitlement
- Preparing tax returns for you and your estate
- Dealing with any court matters
- Applying to the Supreme Court for a Grant of Probate
- Maintaining accurate records of the administration of your estate
- Distributing the proceeds of your estate to the beneficiaries
Who can be appointed an Executor
The only requirement for an executor is that they must be:
- Over 18 years of age; and
- Of sound mind and capable of carrying out your wishes
Any person with mental capacity over the age of 18 years may be appointed an executor. Children can be appointed executors, but they are unable to act until they are 18 years of age. Beneficiaries can also be appointed. It is prudent to avoid appointing elderly people or those who live far away.
Important things to consider when determining Executor
It is important that you choose someone that you trust and whom has capacity to administer complex legal and financial affairs.
Some people elect a family member or close friend to act as their executor. Although this is often seen as an honour, it can be an onerous and stressful role, especially if there is potential for a family dispute. Alternatively, you can nominate a trustee company, but it is important that you enquire about their fees and charges beforehand.
When deciding whom to select as your executor give consideration to whether:
- They have the necessary skills, and are willing and able to administer your estate
- The complexity of your financial and family affairs
- The skills of the potential executor
- The likelihood the executor will have to deal with disputes over the estate
- The likelihood the executor will have a conflict of interest because they are also a beneficiary and also manage the estate
It is preferable to have more than one executor, and/or a backup executor in case one executor dies or is unable to act.
We strongly recommend that you discuss with and advise your executor of their appointment to the role of your executor during your lifetime. You may also give consideration to providing them with a copy of your Will or alternatively advising them where your current Will is held.