Explaining executors’ duties, gifts for grandchildren

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YourLifeChoices’ estate planning expert Rod Cunich receives a lot of questions about wills and, you guessed it, estate planning, Today, he answers member questions about executors, gifting and donating property to charity.

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Q. Brian
Can my nominated executor/s delegate the task to another person or organisation? 

A: Executors can engage people to assist them undertake the task. Many engage solicitors to do most of the work, and some recruit family members to lend a hand. Executors, however, retain the responsibility for ensuring things are done properly, so delegating tasks doesn’t extend to delegating responsibility.

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Q. Irene
I have made my will leaving a very small legacy to each of my great grandchildren. These children are very young and would probably still be under 18 when my will is to be executed. Will this be a problem? Would I be better to leave them each a small cash deposit in an envelope?

A: It is common for grandparents to leave gifts to under-age grandchildren. It is the responsibility of the executor to invest and care for the money until each reaches the age of 18 when the money can be handed to them. If it is a small sum of money that doesn’t warrant the time and effort to manage in an account, then grandparents often opt to leave money in envelopes, one for each grandchild with a note on the outside saying: “For (name) when she/he turns 18” and then give the envelopes to a trusted person.

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Q. Phil
I have three investment properties and my own home. I have a younger brother who has two children but I have no children of my own. I want to leave my niece and nephew something when I die and I’d like to donate one of my three-bedroom units to a charity. Is this something I can do?

A: In a word, yes. If you have a spouse/life partner, I’d clear my plan with him/her first, but otherwise simply see a solicitor to get your will prepared. 

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Disclaimer: This informationhas 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 years of experience who specialises in estate planning. If you have a question for Rod, simply email it to [email protected]

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12 Comments

Total Comments: 12
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    I have given my daughter EPOA for finances and medical, and was wondering if she would be able to transfer the title of my property, which I have left to her, before I die and will she have to pay stamp duty and will this effect my pension?

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    I recently had my will done ,the solicitor added a line to the will that said their company had to be used by the executor on our death to organise the distribution of our assets. I told them to remove it and checked the will very carefully. I no longer do business with that solicitor. Pays to read your will carefully.

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      A solicitor told me it would be highly inadvisable for an executor to use the solicitor who drew up the will if there was any chance of the will being contested. This is because the solicitor drawing the will would be a witness, stating the instructions the deceased gave and what conversations went between the deceased and solicitor when the will was being drafted. Better for that solicitor to be independent, as if they act for the executor as well they could be accused of bias.

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      Solicitors can’t be trusted , if you can’t trust your executor then don’t give them the job.

  3. 0
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    I have left everything to be divided equally between my surviving children. Grandchildren, nephews and nieces are not my responsibility, they are their parents.

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    Children and grandchildren can put a lot of pressure on some of us to be included in the will. I would think our first priority would be to our partner, he or she could really use the asset or money before they die. I find it particularly offensive when a woman who never worked in her life gives assets away she did not accumulate and leaves her husband in a difficult position. Wills should be discussed between husband and wife.

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      I believe that a spouse always has priority over their partner’s estate when they are left in a difficult financial situation. The Will can be challenged and the Family Court will look after the bereaved person first.

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      I think an existing spouse should have priority and of course husband and wife should discuss and agree on how their wills should be drafted. But what really disgusts me is that an ex-spouse or de facto can claim on a will. I know of a case where the executor was required to notify a spouse who had been divorced from the deceased, with no contact, for 30 years. Despite the ex-spouse having never contributed to the deceased’s assets in any way, the executor still had to recognize that the ex-spouse could file a claim on the estate under Family Provisions. How shocking is that? Luckily, he had a conscience and declined to proceed with any claim.

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      Rainey I’ve never heard that one before I’m sure there are many divorced people that would be horrified to hear that. As if divorce doesn’t steal enough of your money without them coming for more after your dead.

  5. 0
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    Spouse and I are 2nd marriage. Have great relationship with 2 children (hers), my son chose to have nothing to do with us for last 25 years. Our plan is to help 2 children and 2 grandchildren financially as much as possible while we are alive, donate to local charities, leave nothing to child who has nothing to do with us (his choice). End goal is to spend everything before we die and leave in our will nothing but an unpaid phone bill. We have a will, but hopefully it will only be worth the value of the envelope when we die. We have told parents to spend up and enjoy their life, we expect nothing from their will.


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