Appointing the right executor is one of the most important decisions when making a will. In essence the role of an executor is to carry out the last wishes of the will maker by collecting assets, paying liabilities and distributing the testator’s assets to those persons whom the testator wished to inherit such assets. The executors must discharge their duties with due care, and in the best interest of the beneficiaries of the estate.
Duties of an executor may involve:
- attending to funeral arrangements
- locating the will
- identifying, collecting and protecting all the assets
- applying to the Supreme Court for a grant of Probate of the last Will if there are assets in the estate which require production of the Probate for the executor to be able to deal with those assets
- determining and paying liabilities of the estate
- lodging tax returns and paying taxes
- selling assets as required
- communicating with beneficiaries and distributing the estate within a reasonable time
- defending the estate when the will is contested
- continuing administration and holding assets on trust if the executor is also appointed as a trustee of the estate
The circumstances of each will maker are different and should be considered when making a decision about appointing executors and trustees of the estate:
Personal characteristics of potential executor/s
If possible, the executor should be a person who is familiar with family circumstances and assets of the testator and someone who will diligently and honestly deal with the assets in the estate and act in the best interest of beneficiaries. It is a good idea to appoint someone who has the greatest interest in the estate because it is reasonable to expect that a person who will benefit from the estate will deal with it in the most efficient way.
Size of the estate
Up to four appointed executors can be granted probate. However, appointing four executors might cause unnecessary expenses and delay with all them having to sign all the documents related to administration of the estate. It is recommended that two executors be appointed so that they can discuss and make decisions together and oversee each other’s work. If the testator’s family circumstances and the estate are simple it is sufficient to appoint a sole executor, with an alternative executor, as the first appointed executor might be unwell, die before the testator or for any other reason refuse or not being able to act as executor.
Family circumstances and possible conflict
- When appointing more than one executor it is important to think about their relationship and their interest in the estate. People who could come into conflict should not be appointed. It is, for example, recommended not to appoint a person who has a life interest in the estate (“life tenant”) and the person who will inherit after the death of the life tenant (the “remainderman”) to act together
- The death of a family member sometimes causes sibling rivalry and issues of control, so it is not recommended to appoint all of the children just for the reason of them feeling equal, if they are not in a good relationship
- If the administration of the estate is expected to be complex because of the nature of the assets in the estate, or for example the testator and their current partner have children from a previous relationship, then two or three executors should be considered, so that they can share the work and control administration of the estate by making decisions together
- If a beneficiary is disabled and a sibling of that beneficiary is appointed, then another independent person should be appointed with the sibling
- In a situation of likely conflict or not having an appropriate member in the family or a close friend, a professional person could be appointed to act. However, the will maker needs to be aware that the cost of administration of the estate will be higher especially if there is a trust which is to last for many years
- It is recommended that will makers, prior to making a will, talk to the person/people whom they wish to appoint as an executor, as they might find it inappropriate or inconvenient to undertake the executorial duties
Executor and trustee
It is usual to appoint the same person/people as executors and trustees, but this is not mandatory. The duties of executors are to pay liabilities of the estate and distribute the remaining assets to beneficiaries or, when appropriate, to trustees. The duty of a trustee is to take control of the trust assets and administer them for the benefit of the beneficiaries in accordance with provisions of the trust of the will. For example, trustees might hold part or the whole of the estate on trust for minor beneficiaries until they are entitled to it, or for a disabled beneficiary. The duties in relation to the trust might continue for a long period and in view of this it might be appropriate to appoint a person different than the executor to be a trustee.