Guide to appointing an executor in your Will - Crystal Lawyers
Who should you appoint as your executor?
The executor must have an interest in the administration of the estate – the executor will be usually the beneficiary with the greatest interest in the estate.
It is usually appropriate to appoint the surviving spouse as executor where that person has the largest interest in the estate. It may not be appropriate to appoint the surviving spouse if that person is likely to come into conflict with the other major beneficiaries.
If the beneficiaries are not suitable to be appointed as executors and the estate is large enough you should consider appointing professional executors. You should not appoint a minor as executor.
Should I get the approval of the executor before signing the Will?
Executors are not bound to accept the office. Hence the proposed executor should be consulted and the executorial duties explained to them before the Will is made.
Who is commonly be appointed as executor?
Spouse or partner
Children over 18
Trusted family friends
Trusted professional advisors – lawyer and/or accountant
What are the qualities you should be looking for in an executor?
A trustworthy person who has the skill set to deal with the role
A person who can engage with lawyers and other professionals whose help may be required in the administration of the estate
Younger than the testator and unlikely to die before the testator
Likely to be available and to have time to deal with the estate
How many executors to appoint?
A sole executor is preferred if the testator’s circumstances are simple. A substitute executor must be appointed if the executor predeceases the testator.
When to appoint more than one executor?
If substantial gifts are made to unrelated parties or children from an earlier relationship you should consider appointing a second executor.
It is not advisable to appoint more than 2 executors jointly unless you have more than 2 children who will share equally in your estate. Then you should appoint all of them.
You should consider the costs for appointing multiple executors, the benefits to be gained and if the persons appointed can work together.
Joint executors may be suitable if:
the estate is to be held in trust for minor beneficiaries or as a life interest
the testator is in a blended family.
You should appoint a joint executor if
you have given a gift to a beneficiary subject to a condition
the proposed executor is appointed to be a guardian for your minor children.
How much do executors charge?
Family members and close friends will carry out the role for free. Third parties such as trustee companies and lawyers, will charge a fee which will come out of your estate. These fees can be calculated in different ways, and you should enquire how your intended executor will charge before appointing them.
What are the duties and responsibilities of an executor?
Disposal of the body of the deceased
Pay debts of the estate - secured and unsecured liabilities
Distribution of the estate assets
Obtain the last Will of the deceased and review its contents
Make arrangements for the funeral and pay funeral expenses
Inform the beneficiaries of the Will of their entitlements and give them a copy of the Will
Arrange for the care of the deceased’s pets
Place a notice in a newspaper about the death of the testator
Hold initial interview with beneficiaries
Inspect properties and take action to secure assets by changing locks on property and liaising with the relevant insurance companies
Contact financial institutions and determine holdings and liabilities
Advertise for creditors of the estate
Obtain the deceased’s death certificate
Obtain proof of identity of all beneficiaries
Obtain financial and accounting advice
Attend to searches of Australian share registries
Locate certificates of title
Compile a complete list of estate assets and liabilities
Apply for and obtain Grant of Probate
Bring in money from financial institutions
Sell real estate and other assets
Open an interest bearing account in the name of the estate
Invest funds in an interest bearing account
File Income tax returns up to the date of death
Finalise the deceased’s Centrelink or Department of Veterans Affairs pensions and entitlements up to date of death
Arrange transfer of or finalise final accounts for telephone, electricity, gas, and other relevant services
Finalise and process final refund of contributions to medical insurance funds
Advise relevant financial institutions to guard against unauthorised use of bank accounts
Establish Trusts if beneficiaries are under 18 years of age, mentally incapable, or if there are specific instructions in the Will
Provide regular updates to beneficiaries
Work with beneficiaries to try to resolve disputes
Prepare legal defence to claims made against the estate
Confirm entitlements with beneficiaries
Lodge final estate tax return
Prepare statements of account.
Most likely, you would have been also appointed as a trustee under the Will. The duties, powers and rights of trustees in Western Australia which I have listed next are governed by The Trustee Act 1962 (WA).
Duty to preserve and invest trust property
Duty to obey the terms of the Will
Duty to keep accounts and supply information
Duty to act impartially
Duty to pay correct beneficiaries
Power to delegate
Power of sale
Powers of management
Right to seek advice and directions of the court
Right of reimbursement and indemnity
A year or more is not an unusual time for some estates to be completely administered. The good news is that if you are discouraged by the daunting list of tasks, duties and responsibilities that come with your role as an executor you can retain a lawyer to assist you. The cost for such services will be covered from the assets of the estate. You are not bound to accept the office and may renounce (reject) the executorship role.
For advice about your specific circumstances please call 0421 145 637.