What’s involved in being an executor?

Rod Cunich discusses what’s involved in being an executor.

executor

Sara has been asked by her mother, Mena, to be her executor, but she’s unsure about what’s involved. Today, Rod Cunich outlines Sara’s responsibilities in this role.

Q. Sara
My mum has asked me to be her executor but both she and I aren’t entirely clear about what this means and what I have to do. Can you explain what are my responsibilities?

A. Your will nominates one or more executors who have the responsibility of applying to the Court to have your will validated and their appointment as your executor formally confirmed. This is the process referred to as ‘obtaining a Grant of Probate’. Until a Grant of Probate is obtained your executor has no legal right to deal with your assets.

The primary task of your executor is to gather your assets together, take control of them and protect them. Your executor will then hold your assets on trust until your debts are paid. Once that is done your executor’s last task is to distribute your assets in accordance with the terms of your will. While the executor controls your assets they are referred to as your ‘deceased estate’.

In many cases a deceased estate will only exist for a relatively short period of time, may be up to one year. Often however deceased estates will continue under the care of an executor for years.  This can occur for any number of reasons:

  • if the assets in the deceased estate are complex and difficult to realise
  • if your will is challenged, in which case the executor must care for the deceased estate until the dispute is resolved
  • if one or more of the beneficiaries are still minors, their inheritance can’t be distributed to them until they reach 18 years of age or some older qualifying age set out in the will
  • occasionally wills require the executor to hold part of the deceased estate and manage it long term because a beneficiary is not capable of managing their own inheritance.

Choosing the right executor is as important as choosing your guardian and power of attorney. An executor’s role isn’t for the faint hearted. Ask anyone who has taken on the role and they’ll tell you that the duties can be difficult, stressful and time consuming. Responsibilities include applying for probate and administering and distributing your estate. In some cases (too many) it also involves fending off attacks on the estate by wannabe beneficiaries.

When deciding who to appoint as your executor, be careful to choose a capable, trustworthy person. You don’t need a professional person to act as executor (for example, a lawyer) but sometimes it’s a great advantage. Any person with mental capacity and over the age of 18 years can be appointed. This includes your children and beneficiaries.

Avoid appointing elderly people or people who live far away as your executor has to be available and handy if they are called upon to act.

Who you choose will depend on:

  • complexity: the complexity of your financial and family affairs
  • skills: the skills of the potential candidates
  • negotiating skills: the likelihood the executor will have to deal with disputes over the estate
  • impartiality: whether or not the executor will have a conflict of interest. If they manage the estate and are also a beneficiary, others in the family may perceive favouritism. If they don’t get on in any way, sharing the role of executor can almost guarantee disputes.

The most common choices are:

  • wife, husband, partner or children
  • friend or business partner
  • professional adviser: possibly a lawyer, accountant or both
  • a trustee company.

It’s preferable to have more than one executor and/or a backup executor in case one of them  dies, is unable to act, or starts to act but can’t continue to do so. Alternatively, you can nominate a firm of lawyers or a trustee company, but it’s important that you enquire about their fees and charges beforehand.

Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.

Rod Cunich is a lawyer with over 30 year of experience who specialises in estate planning. If you have a question for Rod, simply email it to newsletters@yourlifechoices.com.au

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    COMMENTS

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    18th Aug 2017
    11:50am
    If the will is challenged, an executor can experience hideous stress and a lot of incidental costs and can be blamed for the erosion of the estate and for adverse outcomes for named heirs. Unfortunately, our legal system encourages challenges - especially by greedy, self-serving and unconscionable relatives who have no moral entitlement. When such claims are lodged, the courts effectively give the claimant a loaded gun to hold at the executor's head and demand a settlement that is often grossly unfair and immoral. The alternative may be a long and protracted and expensive court battle that erodes the estate and puts legitimate heirs at risk of huge loss. The system is a disgrace! I would never again allow ANYONE to name me as an executor, and I would not recommend anyone make a standard will - in NSW at least. Investigate Enduring Trusts and other options for transferring assets to loved ones after death, because the legal system in NSW does not respect a testator's wishes, but encourages claims that too often benefit neither named heirs nor greedy claimants, but only fat cat greedy lawyers and barristers who do not honour their obligation to pursue truth and justice and do not care how unfair or damaging a will dispute proves to be, as long as they can line their pockets.
    rtrish
    18th Aug 2017
    1:17pm
    As well as the attributes of a potential executor listed above, it helps to have someone who has the time available for the task. Make sure your will is drawn up professionally by a solicitor, and have the option of the solicitors assisting the executor even if the executor will be the one finally responsible. Solicitors' fees will cost money but is, in my humble opinion, worth it. Especially if a will is at all complex or is likely to be challenged. I know whereof I speak.
    shirboy
    18th Aug 2017
    1:36pm
    I consider myself lucky in that one of my three executor sons is a solicitor.
    casey
    18th Aug 2017
    1:55pm
    Been an executor a couple of times, and am an executor for two more family members. Had no problems. Solicitor assisted me with anything I was'nt sure of.
    Ronnie
    18th Aug 2017
    3:18pm
    I don't want my family to have any part of my will and have made that clear... Can I have my solicitor to be the executer of my Superannuation? My Super says I can only choose family.... I am not married, I have no children, I have disowned my family... I do have two friends of 20years + who I trust 1oo%.... Im so scared of my family getting anything Ive worked so hard for..... Can anyone help me please?
    Rae
    18th Aug 2017
    5:50pm
    Yes. Find a good solicitor. Ask a local business or two you trust who they use. Your two friends and the solicitor can be named as executors for you. The solicitor will be able to advise you as to the best way to secure your wishes.There is no need to be afraid. Trust your own feelings in this. If you don't feel comfortable when you talk to the solicitor or don't understand him or her, then pay the fee, walk away and try again. Take one or both friends with you for opinion if you feel you can trust them.

    I'm not sure about the super but I have a binding nomination with my fund although a family member is the nominee. I can't see why a charity or other individual couldn't be named.

    Write a list of all every question you want answered by the solicitor including costs.
    List all your assets and liabilities and how you wish them distributed.

    Your local library will have a short book or two with information about wills and superannuation rules. Talk to your librarian. They will also help you find the information you need to sort out your situation.
    Some libraries have a justice of the peace available on set days and you could also seek their advice as to a reputable solicitor and sign any copies of documents for you.

    Don't be scared.
    Anonymous
    29th Dec 2018
    9:03am
    Good luck stopping your family getting what you worked so hard for. The legal system is disgusting. What you want counts for NOTHING. If there is a greedy, selfish, malicious child wanting, a greedy unconscionable lawyer will take on their case free and two solicitors and two barristers will party on what you leave behind while that greedy, selfish, malicious child gets a chunk of your estate that you didn't want them to have. And there is NO way to stop this happening. The system is designed to enrich lawyers and feed greed and malice. The wishes of the person who EARNED all that money count for NOTHING.
    Ronnie
    18th Aug 2017
    3:18pm
    I don't want my family to have any part of my will and have made that clear... Can I have my solicitor to be the executer of my Superannuation? My Super says I can only choose family.... I am not married, I have no children, I have disowned my family... I do have two friends of 20years + who I trust 1oo%.... Im so scared of my family getting anything Ive worked so hard for..... Can anyone help me please?
    Anonymous
    18th Aug 2017
    3:38pm
    A solicitor can always be an executor and is probably preferable as they should know what they are doing this is for your estate.

    For your Superannuation you generally have to nominate a beneficiary that is a person you want to receive what money is in your superannuation on your death, and the person running the super fund called the trustee will follow your wishes.

    So if you don"t want family to have your superannuation just nominate the person you prefer to receive it .Ring the trustee to send you the beneficiary nomination form and complete it as soon as possible.
    Please note I have been executor for many wills in the past.
    Nan Norma
    18th Aug 2017
    3:42pm
    Be warned. I'm sorry to say that when it comes to wills some solicitors' fees are horrendous.(greed)
    When my mother died she had no assets other than money with the Public trustee. The solicitor (a supposed friend) charged my sisters and I $6000 and it was his secretary did the work. All he did was sign the papers. I believe what he had done was charge each of us $2000 for doing the same work. Some of it we actually did ourselves.
    Anonymous
    18th Aug 2017
    6:26pm
    does the executor have to, by law, public announce you have left this world before he/she has fulfilled your wishes as to how you, the deceased, wanted it to be distributed?
    Anonymous
    29th Dec 2018
    9:04am
    Yes. A notice must be lodged.


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