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 estate administration – the executor will usually be 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 unsuitable to be appointed executors and the estate is large enough, you should consider appointing professional executors. It would be best if you did 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 should be explained to them before the Will is made.

Who is commonly appointed as executor?

• Spouse or de facto partner

• Children over 18

• Siblings

• Trusted family friends

• Trusted professional advisors – lawyer or accountant

• Trustee company

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 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 always 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 2 executors jointly.

Appointing more than 2 executors jointly is not advisable unless you have more than 2 children who will share equally in your estate. Then it would be best if you appointed all of them.

You should consider the costs of 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 that will come out of your estate. These fees can be calculated differently, and you should ask how your intended executor will charge before appointing them. You must also sign a costs agreement authorising your professional executor to charge their usual fees.

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 interviews 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 a 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

• Inform Medicare

• Arrange transfer of or finalise final accounts for telephone, electricity, gas, and other relevant services

• Finalise and process the final refund of contributions to medical insurance funds

• Advise relevant financial institutions to guard against the 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.

Click here for a more comprehensive list of the executor's duties.

You would have likely also been appointed 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 from the court

• Right of reimbursement and indemnity

A year or more is common 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 estate's assets will cover the cost of such services. 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.

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