RP Emery and Associates - Legal Publishers Since 1990
Category A-Z
HomeShop Check Out Members LoginAbout UsFAQ'sContactTestimonialsBlog
Legal Advice


Download Separation eBook

Burning Questions About Executors

In the unfortunate event of a death, a Legal Will determines who the deceased’s assets are distributed to and how.

An executor is a person appointed with the responsibility of distributing these assets to the beneficiaries of the Will, so it’s important to choose your executor wisely.

Below, we’ve collated some of the most common questions we’re asked about executors and their responsibilities:

Who can and should be an executor?choosing an executor

When you’re making a Will, an executor is the person or organisation that you will appoint with the duties of carrying out your wishes.

The only prerequisites for an executor is that they must be over the age of 18 years old, but an ideal executor will also be:

  • Completely trustworthy, mature and responsible;
  • Able to use good common sense (and preferably, some business sense) when administering complex financial and legal affairs;
  • Able to remain diplomatic if tensions develop between family members;
  • Able to remain impartial when handling your estate and must comply with procedures and laws while doing so.

A marital partner, sibling or close friend are obvious choices to act as your executor. While this may seem like you’re bestowing an honour on your executor – he or she may end up enduring a lot of stress, particularly if there’s likely to be family disputes.

Due to the responsibility, it’s a good idea to discuss your plans with your intended executor, to ensure they are comfortable carrying out your wishes. When the time comes, an executor is not legally obliged to accept the appointment.

Can I appoint more than one executor?

Yes, and in fact, it’s wise to appoint an alternate. This will ensure the handling of your estate falls into capable hands should something happen that prevents them the original executor from being able to carry out your wishes, or they decide not to accept the appointment. Many people appoint a spouse as the sole executor, then add a provision for alternative executors.

Another consideration is to have separate executors perform different duties. For instance, a trusted business partner might administer the financial and legal aspects such as repaying debts or obtaining probate. And your spouse might deal with the personal detail such as making the funeral arrangements.

Depending upon the complexity of administering the estate some also decide to appoint a  third party or trustee company with the experience required to deal with complex legal or financial matters; however, many people are restricted in this respect by the fees charged to the estate by a trustee company, or they don’t like the depersonalisation of proceedings or the fact that Trustee Companies often take much longer to distribute estates.

Can an executor benefit from my will?

Absolutely; however, they must remain completely impartial and not allow conflicts of interest to determine the outcome. Because of this, it is imperative that you take the time to consider carefully the benefits vs the negatives of appointing a beneficiary as an executor.

If you feel your executor may have trouble remaining impartial, it’s best to choose one who does not benefit from the Will at all. If you don’t feel completely comfortable with appointing an impartial person to perform this potentially onerous duty without compensation, you can always allocate a certain amount of your estate to be paid to them as a type of ‘wage’ or executors’ payment.

Get a Will Kit Today

What are an executor’s responsibilities?

An executor has several responsibilities, some of which may prove difficult or complicated, which is why we stress the importance of having somebody who is mature and responsible acting as your executor. Responsibilities include:

  • Finding the Will (let them know where you have stored it);
  • Arranging for posthumous handling (burial, cremation, etc.);
  • Ensuring funeral arrangements are carried out;
  • Obtaining the death certificate;
  • Identifying all of your assets and their value;
  • Determining if you have any liabilities;
  • Organising to pay funeral expenses, any outstanding bills, income taxes or other debts;
  • Applying for probate;
  • Distributing your estate;
  • Defending your estate against any legal claims;
  • Resolving any disputes between beneficiaries.

How can I make my executor’s job easier?

One of the most helpful steps you can take is to let your executor know where your Will is kept, as well as other relevant paperwork, including your birth and marriage certificates, bank records, insurance, house deeds, Centrelink paperwork and similar. Leaving your executor a list of all your assets, financial organisations and any debts will help them to do the job you have asked them to do.

On a more personal note, discussing (or preferably, writing down) what you’d like with regards to your funeral arrangements – as well as how you’d like any sentimental assets distributed – ensures that your loved ones can grieve and remember the good times, without the added stress of family disputes.

Related Articles

Last Will and Testament

Estate Planning for Families

I made a Will during marriage and we're separated - is it still valid?

 

 

By

Sign up to the Bottom Line