The role of an executor and the importance to choose wisely!

When it comes to planning your Will, one of the most important decisions you need to make is around who you will nominate as your executor, which is the person who you trust to manage your hard-earned assets and legacy, on your death. You can choose to have either a single person, multiple people, or an agent to act as your executor, as long as they are over the age of 18 years, capable and a tax resident of Australia. Another component in deciding who will be your executor is considering who you trust the most!

Your executor is responsible for ensuring all your instructions for post death are effected smoothly and efficiently, allowing for less hassle for your beneficiaries (those you distribute your estate to) and other parties involved in dealing with your affairs on your death.

When spouses/partners draft their Wills, the most common appointment is to nominate the surviving spouse/partner as their executor. Given the relationship, the process is usually more straightforward in terms pf locating the Will, identifying assets, and communicating with beneficiaries.

Spouses or partners who have children, commonly then appoint a child or children as the alternate executor/s of their estate. This can be a single child or multiple children (up to four) appointed to act jointly. If you have multiple children but only wish to appoint one or some of them, that does not mean they have to be your favourite or the eldest! The choice rather depends on the circumstances of your children and if they are capable of handling all the post death tasks such as obtaining a Grant of Probate and administering your estate (such as liaising with banks or other financial institutions, dealing with property and distributing the estate in accordance with your Will).

Depending on your circumstances, nominating a spouse/partner or children may not be desirable. If that is the case, you may also want to consider nominating a trusted sibling or other member of your extended family or a trusted friend. Our advice is always to tell your executor that you have nominated them, and this is particularly important if the person you appoint is not an immediate family member. Your executor does not need to be a beneficiary of your Will and you are not required to compensate an executor or provide them with a commission for acting in such a role, but you can decide to leave them a gift under your Will, in lieu of acting in such a role, if you so wish.

A further common alternative is to appoint a professional, such as a lawyer, accountant, or financial advisor. Although professional executors are entitled to charge a fee for acting as your executor, you know that they will complete the administration of your Will entirely how you propose, without any risk of dispute between friends and family. 

A professional executor will also be more independent and have knowledge on accounting and/or legal matters, such as applying for a Grant of Probate, defending any claims against the estate, lodging tax returns and claiming life insurance etc.

Aside from appointing a professional executor, such as your lawyer, accountant or financial advisor, a licensed Trustee Company also has the ability to act as an executor of your estate. Again, trustee companies are completely independent, and they have teams of authorised people who can provide investment, accounting, legal and financial advice for the estate, however, they do charge commissions for acting in such a role, based on the quantum of assets under management.

If you do decide to appoint a family member or friend as your executor, they are also encouraged to engage a lawyer and generally seek professional advice to ensure they have proper guidance in administering your estate in accordance with your Will and intentions.

Importantly, if, at any time, a co-executor or beneficiary has concerns about how an executor is acting and, if such actions are not in the best interest of the beneficiaries of the estate, legal action can be taken against an executor. There are laws in place within the Wills Act 1997 (Victoria) and the Administration and Probate Act 1958 (Victoria) to protect your beneficiaries from this occurring. 

As you can see, choosing the right person to act as your executor is an important decision. Nominating the most appropriate person or persons can make it easier for your family and friends at a time of grief and can also provide you with the reassurance that you have left things in good order for your family to manage after your death.

Your executor will also be entrusted with defending any litigation that may be brought against your Estate, including but not limited to defending a claim on your estate for further provision (i.e. a will contest claim).

The team at iWills Legal can provide you with specialist advice to ensure that you are comfortable with who you nominate as your executor and ensure they are right person or persons for the job.