Elder Law, Trusts / Asset Planning
One of the key decisions to be made when writing your will is who to appoint as executor. This choice is very important as it has ramifications for your beneficiaries and for the successful carrying out of your wishes under your will.
In short, the executor is your personal representative on your death, responsible for disposing of your body; proving the will and obtaining authority to administer your estate; paying your debts and distributing the estate. The effect of executorship is to grant the executor legal title to all your assets from the moment of death.
The executor has the following roles and responsibilities:
- applying for probate of the will. Probate literally means that the will is valid. This is the official document issued by the High Court which authorises the executor to deal with your estate. In most circumstances probate is granted on written application to the Court which includes filing the will with the Court. In some cases, where there is a family dispute, the executor may have to go to Court over the validity of the will;
- overall management of the financial and practical aspects of administering your estate;
- overseeing the legal and financial process from start to finish and ensuring that everything that needs to be done is done;
- managing benefits that you have set aside for children/grandchildren until they reach a particular age;
- managing and controlling long-term trusts established under the will, such as a trust for a surviving spouse or partner for their lifetime;
- being involved in litigation to defend and uphold a will and dealing with any other claims on the assets or administration of the estate.
Factors to Consider when Appointing
To best ensure the smooth administration of your estate the following factors should be considered when selecting the executor of your will:
- What are the family dynamics? Have you remarried? Do you have children with another partner? When family members are grieving, conflicts that you may not have anticipated can arise.
- Will the executors you are considering be able to act unanimously or will their conflicts of interest stop them being able to fulfil their duties as executors. An independent executor should always be considered as a way of dealing with any potential family discord.
- What is the age and mental health of the intended executors? Executors cannot be appointed while under the age of 20. Your spouse, sibling or other contemporary may not be suitable as the sole executor because it is possible that they may become mentally incapable before your death.
- If the executors you plan to appoint are elderly or may lack capacity, then you should consider substitute executors in the event that the intended executors do not survive you or do not have sufficient capacity to apply for probate. A substitute executor should be considered if you wish to appoint only one executor.
- How complex is your estate? If your estate is simple (note that it may be many years before the will takes effect), then it may be appropriate for lay persons to be appointed as the only executors. Professionals are there to assist if required. However, if the estate is complex because of potential claims from family members, or where a business is involved, or there are multiple investment assets that may require careful decision making and management, then the appointment of at least one professional executor should be considered.
The consent of executors is not necessary at the time the will is drafted. However, it is prudent to ensure that you discuss the appointment with the proposed executor to avoid issues later if the person you have appointed declines to act.
The partners of Brookfields have acted as executors in many thousands of wills. In addition, the firm has administered many estates. This is an area of law in which we have a wealth of experience and knowledge to call upon.
If you wish to discuss anything in relation to your will and/or those who you have appointed as executors, please contact us.
The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.