Choosing the right executor

When making a will, one of the most important decisions you need to make is who you will appoint as your executor.

The executor’s role includes:

• arranging your funeral, including making decisions about burial or cremation;

• identifying the assets and liabilities of the estate;

• notifying banks and other financial institutions of your death;

• obtaining a Grant of Probate of the will;

• calling in and collecting estate assets (which may include the sale of assets such as property or shares) and paying out any debts;

• finalising your personal tax affairs and the tax affairs of the estate;

• defending any claims against the estate;

• holding funds on trust for minor beneficiaries; and

• distributing the estate in accordance with the will.

Generally, executors are given broad powers in relation to investment, management and sale of assets during the administration of the estate.

Depending on the terms of any company constitutions, discretionary family trust deeds or your self-managed superannuation fund (SMSF) deed, the executor might also replace you as a director of a private company, a trustee and/or appointor of a family trust or SMSF. This results in the executor assuming all the powers, discretions and responsibilities you hold in those positions.

The executor can be a family member such as your spouse or child, a trusted friend or a professional such as an accountant, lawyer or professional trustee. You can appoint one or multiple executors, and you can nominate a substitute to act if your first nominated person has died or is unable or unwilling to act.

If you already have a will, you should consider whether the current appointment is still suitable and appropriate. For example, you may have appointed a friend as executor when your children were young, but your children are now grown up and can take on that role instead. You may have a former spouse appointed, a person who you no longer have contact with, or someone who is unable to act due to poor health, old age or other personal reasons.

When appointing an executor, you need to consider:

• the trustworthiness of the person;

• the person’s age and health and whether this may impact their ability to undertake the role;

• where the executor lives, including the practicalities of appointing a person who lives far away and who may have to travel to undertake executorial duties;

• the person’s availability and capacity to take on the role;

• how complex the administration of your estate will be;

• the person’s understanding of financial and legal matters;

• if appointing multiple people, the dynamic of the relationship between the executors, whether they can work together and communicate effectively;

• the person’s relationship with the beneficiaries of the estate;

• whether the person will seek remuneration or commission;

• whether the person can make decisions objectively, act impartially and not take sides in a dispute.

Contact the Harwood Andrews’ Wills & Estates team to discuss your personal circumstances.

Daniela Pavlovic
Principal
T 03 5225 5227 | M 0417 014 455
E dpavlovic@ha.legal

Ronan Mathews
Associate
T 03 5225 5211
E rmathews@ha.legal