Trusts / Asset Planning
Who is the right person to choose as executor of your will?
While it can feel like an uncomfortable conversation, writing a will is an important act - not only to ensure your last wishes are respected, but also to make the process as easy as possible for your family or beneficiaries.
No matter the size of your estate, one aspect that needs thoughtful consideration when you are writing your will is who to appoint as executor. It’s an important job, and therefore, an important choice - one that has ramifications for your beneficiaries and for the successful carrying out of your wishes under your will.
What does an executor do?
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’s responsibilities include:
- applying for probate of the will. Probate 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.
Who is right for the role?
Given the importance of these tasks, choosing the right person to act as executor takes some consideration to ensure the smooth administration of your estate. When family members are grieving, conflicts that you may not have anticipated can arise.
While everyone’s situation is unique, here are some factors to keep in mind when selecting an executor:
- What are the family dynamics? Have you remarried? Do you have children with another partner? 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 18. 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.
Do you need to ask before assigning the role of executor?
The consent of executors is not necessary at the time the will is drafted. However, given the responsibilities (and the time potentially involved) it is prudent to discuss the appointment with your proposed executor to avoid issues later if they decline to act. Even if they accept, it’s a good idea to appoint a contingency executor, and again, a professional executor is worth considering for this role.
So, perhaps that’s where we come in.
The partners of Brookfields regularly act as professional executors in many wills and have administered many estates. We understand the importance of these conversations, and the need to feel confident that you have the right plans in place for your situation. Taking action now ensures peace of mind for you, and is an act of care for the loved ones you leave behind.
Is it time to get this task off your to-do list? If you wish to discuss anything in relation to your will and/or those who you have appointed as executors, please get in touch to arrange a time to chat to one of our experienced advisors.
