Appointing an executor is one of the most important steps in your Will, but it can be tricky and complicated. Here we provide you with information about what an executor is, their roles and responsibilities, and what you should think about when choosing yours.
1. What is an executor?
An executor is the person you nominate in your Will to take care of everything related to your estate after you pass.
They are tasked with locating your Will and assets, distributing the assets according to your Will, and handling all other aspects of your Will. Because of this, it is a big responsibility and depending on the complexity of your estate, it can be an onerous task.
2. How do I choose an executor?
Appointing an executor is a very important component of your Will, and you should take care in appointing the right person.
With Safewill, you can appoint a single executor, or two co-executors to work together. You can also appoint one backup executor in case either or both of the primary executors are unable to unwilling to perform the role.
The executor(s) you choose must satisfy a few legal requirements:
They must be a resident of Australia.
They must be over 18.
They must have the legal, physical and mental capacity to complete the tasks involved. This means they are not incarcerated or an undischarged bankrupt, and are able to understand the nature of administering an estate.
In addition to the legal requirements for executors, there are other factors you may want to think about when appointing someone:
Make sure you can trust the person to administer your estate in accordance with your wishes. They will have full discretion when dealing with any unforeseen circumstances that arise and will be making important decisions when it comes to the distribution of your estate.
Executorship can be a big undertaking - there are significant responsibilities and they may be faced with a heavy workload. You should therefore appoint someone that has the time and energy to execute the tasks properly, is organised, and is willing to take on the responsibility.
An executor can be a beneficiary under your Will.
The most common choices for executors are close family members, friends or professional executors.
Given the responsibilities of executorship can be onerous at times, some people choose to appoint professional executors (such as their lawyer or financial adviser). This removes stress from your family members or close friends, but incurs a professional administration cost which needs to be considered.
3. What responsibilities will my executor have?
Your executor is tasked with ‘administering your estate’. Simply speaking, this means that they are responsible with all aspects of making sure your Will is followed. More specifically, they will be responsible for:
Locating your Will
Making arrangements for your body
Organising a death certificate
Compiling a list of all your assets and liabilities to assemble and assess the value of your estate
Obtaining probate
Paying debts, outstanding tax, duties and funeral expenses
Distributing the assets according to the terms of the Will
Facilitating any other arrangements as required by the Will (including guardianship for children or pets, delivering gifts etc)
4. What happens if my executors are unwilling or unable?
There are several reasons your estate may be left without an appointed executor:
You don’t appoint an executor in your Will
The executor you appoint does not want to fulfil the role
The executor you appoint is unable or ineligible to fulfil the role
The executor you appoint dies before you, and you have not updated your Will
If you have appointed two primary executors, and one is unable to act, then the remaining executor will become sole primary executor. If you have only appointed one executor, and they are unable to act, then your back up executor will become the primary executor. If no one is left to act, or you did not appoint a back-up executor, it will be up to the courts to appoint an executor.
In light of this, our legal advisers generally recommend you consider appointing up to three executors (two joint executors, one backup executor) in your Will, so you are protected if your first or second preference were not available.