How do you appoint an executor of a will?
16 Nov 2020
Ready to choose the Executor of Your Will? Here’s what you should know.
When writing your will, one of the biggest decisions you will make is choosing your executor. Your executor will manage your estate when you die. It can be a family member, friend, lawyer or other professional, or a trustee company such as State Trustees. Either way, there are a few things you should consider before selecting someone for this important role.
What does an executor do?
The main obligations of an executor are quite straightforward. It’s important to pick someone who is dependable, well-organised, honest and vigilant.
Some of the tasks the executor usually needs to complete include:
- Applying for a death certificate
- Applying for a grant of probate
- Finding and contacting the beneficiaries (people who are left something in the person’s will), including anyone interstate or overseas
- Protecting the person’s assets. You need to make sure the assets are safe so that they can be given out as the person wanted them to be. This might include taking out insurance or making an inventory
- Providing death notifications to the Australian Tax Office, Centrelink and banks
- Paying any outstanding bills and debts from estate funds and arranging to have assets valued
- Defending the estate against legal action
- Resolving disputes between beneficiaries
- Lodging tax returns if needed
- Claiming life insurance and superannuation
- Setting up trusts and administering them, if that is part of the instructions in the will. A trust might be set up to look after and protect assets for a child until they reach a certain age
- Dealing with any real estate that is part of the estate, including getting the property ready for sale
- Distributing assets according to what is in the will
- Providing a full accounting of your administration of the estate to beneficiaries.
You can choose to administer the estate yourself or ask a trustee company, like us, to administer the estate for you
For example, when dealing with property assets, an executor should consider who has access to that property, if the property is insured, whether the policy is up to date and whether terms and conditions of the policy are being met.
Where motor vehicles are concerned, an executor should determine who has the keys, who drives the vehicle, the status of the vehicle’s insurance policy and, consider who’s responsible for costs if there’s an accident.
Reaching out to beneficiaries
An executor acts as a legally appointed representative to protect the assets of a deceased estate until they can be passed on to beneficiaries. This includes those beneficiaries who might reside interstate or overseas. Executors work to mandatory waiting periods for deceased estate administration tasks such as obtaining a Grant of Probate and conveyancing. It is good practice for executors to communicate regularly with beneficiaries to ensure there aren’t any misunderstandings or conflict about the process of deceased estate administration.
Reducing the risk of claims
One thing that can be overlooked is the risk of claims against the estate. Once an executor obtains a Grant of Probate Victorian law provides for a six month period in which someone may make a claim on the estate. This is sometimes referred to as the ‘Testator Family Maintenance’ (TFM) period. A TFM claim is a claim against an estate for money by a member of the testators’ family who believes they were entitled to more from the will than they receive. Claims don’t happen on every estate but, mishandling one can cost the estate.
Claims requesting for a share of funds or a greater share of funds are sometimes made by estranged family members and ex-partners of the deceased. If an executor was to pay out the funds in an estate before the TFM period expires and a claim later arose that was valid, an executor may end up paying for the legal bills and any settlement amount out of their own pocket.
Being an executor often means having to make some tough decisions. It helps to have some experience in finance, business or law which can assist to resolve estate issues, liabilities and disputes.
Executor Assist is a tailored service offering from State Trustees for executors who wish to retain their role but require expert guidance with obtaining a grant of probate and other specific deceased administration tasks.
For executors who do not wish to remain in the role we can take on full legal liability and responsibility for administering a deceased estate, whether or not the person had made a Will before they died.
What if no Will can be found?
This means the deceased is intestate. In these cases, the estate is distributed in accordance with the laws of intestacy. These laws dictate a particular order of payment to the family members of the deceased.
Who can be an executor
Anyone above the age of 18 can act as an executor of the will. It can be a family member, friend, lawyer or other professional, or a trustee company such as State Trustees. When choosing an executor, they should be someone you trust who has the skills and time to manage complex legal and financial matters when you’re gone.
Get their approval first
Whoever you choose to appoint as executor, it’s a good idea to let them know before naming them in your will. Once you’ve made the decision, have a chat with them regarding your financial details and let them know where all your important documents and financial information are kept. This will make it a lot easier on the executor to get all your affairs in order when you’re gone.
An Executor can authorise someone else to act as Executor
A lot can happen between agreeing to be an executor and becoming one.
If you’ve been appointed as executor but don’t believe you have the capacity to fulfil the required duties, you can choose to authorise State Trustees to to administer the estate on your behalf.
Professional executors could be the better option
While professional qualifications are not required to act as executor, there are complexities that come with a deceased estate which may require professional assistance. Consider choosing a professional executor if you are worried things could turn sour between family and friends after reading your will. While this can come at a cost, it may be advantageous to ensure it is dealt with in a professional manner.
This approach may also be suitable if you don’t have a close relative or friend to choose as executor. A trustee company such as State Trustees can help in situations that may be complicated or ones that may require long-term administration. Appointing a professional can also help avoid problems if family members are unhappy with the terms or an appointed executor dies. A professional executor’s responsibility is to act objectively in line with your wishes.
Being an executor can be overwhelming and it is understandable for people to feel lost as to where to start. State Trustees administers more deceased estates than any other organisation in Victoria. Our expert team understands all the aspects, and challenges, of deceased estate management and work with executors and grieving families daily to ensure administration is impartial and in the best interests of all.
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