Choosing an executor of your will - Things to consider

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Coleman Greig Lawyers

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The choice of an executor is important, as this is whom you appoint in your Will to administer your estate when you pass.
Australia Family and Matrimonial
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The choice of your Executor is a very important one. This is the person (or persons) you appoint in your Will to administer your estate when you pass.

Being an Executor isn't easy and if you're wondering how complicated it can get, the answer is "How long is a piece of string?" Unfortunately there is no one-size-fits-all answer to this question - how complicated the role gets can vary widely. This is usually dependant on whether there are any problems with the Will itself (eg, interpretation), the size and nature of your assets, whether there are any issues with beneficiaries (eg, tensions, disabilities, bankruptcy issues) or if a claim is made on the estate for further provision.

Also, if something goes wrong, an Executor could potentially be personally liable for losses to beneficiaries and creditors (eg, not paying debts and taxes, selling assets for less than their real value etc).

The main functions of an Executor are:

  1. to apply for Probate (an order of the Supreme Court confirming your Executor's appointment and that your Will is the most recent one and valid);
  2. to collect your assets. If assets need to be sold, an Executor will need to decide how they should be sold and for what price and on what conditions?
  3. to pay your debts and deal with outstanding matters such as income tax; to distribute the balance of the estate to your beneficiaries in accordance with the Will.

Depending on your individual circumstances, numerous considerations might bear upon your decision as to who to appoint. It's important that people understand their options. Some things you might want to consider are:

  • Should you have one Executor or more than one?
  • Should you appoint one or more of your beneficiaries as Executor? What about a sibling and/or friend? Beneficiaries are usually a good choice as they have the impetus to move things along but be aware of family politics and potential tensions.
  • Should you appoint a professional Executor such as a trustee company or a professional advisor (eg, your lawyer or accountant)? The advantages are impartiality and professionalism but you need to bear in mind that this comes at a cost.
  • Will your chosen Executor have the time to deal with your estate? Consider if he or she has other commitments as the role can sometimes become a full time job (depending on the complexity of the estate and personalities involved).
  • Is your Executor likely to be able to deal with the stress of the responsibility? You don't want to inadvertently burden a friend or loved one.

Whoever you choose, make sure that you consult your intended Executor before having your Will drawn up. He or she needs to understand what is expected of them and make a considered decision about whether to take on the responsibility.

Some people only discover they have been appointed after the Will maker has passed, making it awkward for the Executor to refuse the potentially onerous role. An Executor can decide following your death that they don't wish to accept the role however the window is tight – they can't have actually started taking on any of the position's duties. If this happens, you will have no control over who administers your estate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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