Often when we think about wills, we tend to immediately focus on who we want to receive what, or who we wish to exclude A crucial party to any will is the executor – that is, the party that is appointed to carry out the wishes of the willmaker.
What is the role of an executor and who should I appoint?
The role of the executor is to call in the estate, discharge any liabilities and then administer it according to the terms of the will. This includes but is not limited to:
- locating the original will;
- making funeral arrangements;
- organising/lodging appropriate documentation (probate, tax returns);
- preserving the assets prior to distribution;
- contacting beneficiaries and advising them of their entitlements; and
- defending the estate if a claim is made against it.
The minimum age for a person to be appointed as executor is 18 years and in Queensland, the maximum number of persons that can be appointed is four. When considering who to appoint, regard should always be given to the intended executor(s)':
- relationship to the willmaker and other executors appointed (as the case may be); and
What happens if no executor is appointed?
If there is none appointed under a will then the estate administration responsibility generally falls on one of the beneficiaries. However, bear in mind that the person will need to apply to the court for letters of administration and there is an order of priority on who can make such application.
Once letters of administration are granted, then the person appointed – called an administrator can to settle the estate.
What happens if they have passed away or decline to act?
There are also times where an executor may wish to forgo their responsibility (e.g. due to their age, health, geographical location etc). When this occurs, if there is a named substitute executor, then that person will step into such a role. However, in the absence of a substitute executor, then the same procedure where no executor has been appointed will apply.
The process is a little different in cases where an executor has died.
If a sole executor has obtained probate but passes away before settling the estate, then the deceased's executor will be the executor of the original estate as well as the second estate (subject to court application). If probate has yet to be obtained, then the position is the same as though no executor had been appointed.
If there are named substitutes or if there are joint executors, then the substitutes or surviving executors will step into that role or continue to act if the preceding executor has passed away.
What if I don't have anyone to appoint as my executor?
If you prefer not to appoint family members and/or friends or if you don't have anyone to appoint – whatever the reason may be, there are other options available including:
- independent trustee companies that specialise in providing estate administration services; and
- a trusted advisor (lawyer, accountant, financial advisor).
The advantage of appointing a professional is that it ensures that your instructions will be carried out by an independent party as well as providing continuity of service. Where there is a dispute, a professional executor will act impartially to ensure the best interests of the estate is maintained.
Depending on the trustee company or firm, there may be minimum requirements (e.g. estate value) before the executorship role is accepted. The estate administration fee structure may also vary between different bodies. It is therefore always important to carry out your due diligence prior to making such appointments.
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.