What Is an Executor of a Will in NSW?
The execution of a will is a crucial step in the estate planning process. It ensures that the deceased’s wishes are followed regarding the distribution of their assets. It is a job that requires tact, attention to detail, and utmost integrity.
What is a Testator in a Will?
Any person that writes and executes a valid will in NSW is known as the document’s testator.
As testator of your own will, you will name the beneficiaries you wish to receive your assets after you die, appoint an executor and state your wishes for your funeral.
For a testator’s will to be considered valid, specific legal requirements, which vary between states, must be met.
Who is Eligible to be an Executor of a Will in Australia?
In Australia, an executor of a will can be an individual or a trustee company. The individual must be at least 18 years old and of sound mind, meaning they can understand the duties and responsibilities they are taking on.
There are no hard-and-fast rules about who that individual can be. It can be a spouse, adult child, relative, trusted friend, or legal or financial professional. Trustee companies can also act as executors, often used when the estate is complex.
Can a Beneficiary of the Will be the Executor?
Yes, a beneficiary of a will can also serve as the executor. This is quite common, especially in cases where the spouse or adult children are the primary beneficiaries of the estate.
However, having a beneficiary as an executor can sometimes lead to conflicts of interest, especially when multiple beneficiaries need to be managed carefully.
Can an Executor be Removed in Australia, and Under What Circumstances?
Yes, an executor can be removed by a court in Australia under certain circumstances, such as:
- They are incapable of performing their duties due to physical or mental incapacity
- They are not administering the estate properly
- There is a conflict of interest that prevents them from acting in the best interests of the estate
How to Choose the Right Executor for Your Will?
Who can be an executor of a will, and how to choose the right executor for your will?
Choosing the right executor for your will is not a decision to be taken lightly. The executor of a will has a significant role, and the right person should have the time, inclination, and ability to perform their duties diligently.
Here are some factors to consider when choosing the executor for your will in Australia:
- Trustworthiness: This is arguably the most essential quality to consider. The executor will be responsible for your assets and ensuring they are distributed according to your wishes. They must be honest, trustworthy, and reliable.
- Understanding and Capacity: The executor needs to understand the obligations and responsibilities of their role. They must be organised and meticulous, as they will deal with the paperwork and legal processes. Consider their capacity to perform such tasks.
- Age and Health: Given that you’re preparing for a time when you are no longer here, choosing someone likely to outlive you and be in good health is essential. Choosing someone considerably older than you or in poor health might not be wise.
- Location: While the executor doesn’t have to live in the same state or territory as you, it can be practical. They may need to deal with your assets and belongings, communicate with local institutions, or handle legal proceedings in your area.
- Relationship with Beneficiaries: An executor who gets along with the beneficiaries can make the process smoother and help avoid disputes. If you anticipate potential conflict among your heirs, choosing an executor who is not a beneficiary might be wise.
- Number of Executors: You can appoint more than one executor. Having two or more executors can provide a system of checks and balances. It can also divide the workload, making the task less daunting. But be aware that this can also lead to disagreements between executors.
- Professional Executors: In some cases, particularly for complex estates, it may be beneficial to appoint a professional executor, such as a solicitor or a trustee company. They have the expertise to deal with complex issues and can act impartially. However, there will be fees associated with their services.
Making a thoughtful choice about who will serve as the executor of your will can go a long way toward ensuring your estate is handled according to your wishes.
Take the time to consider your options and, if necessary, seek advice from a legal professional to help make the best decision.
What is the Role of the Executor of a Will in NSW?
The role of executor comes with several, often complicated responsibilities. Anyone appointed as an executor in NSW will have the following responsibilities when administering your will:
Locating the Will
The first step an executor needs to take is to locate the will. In most cases, the executor will have been informed of the will’s location before the deceased’s passing.
Organising Funeral Arrangements
An executor in NSW will be required to arrange the funeral of the deceased according to the wishes laid out in the will.
This should be carried out as soon as possible after death.
It is important for the executor to follow the deceased’s wishes as carefully as possible to avoid any legal consequences.
For example, it is illegal in NSW to cremate somebody against their wishes.
When organising the funeral, the executor should consider discussing the arrangements with the deceased’s family, especially if there are religious considerations.
Obtaining Probate
As part of their role as executor, the administrator will need to apply for probate.
Probate is official recognition that the will is legal and valid.
This is obtained by making an application to the Probate Registry of the Supreme Court for a ‘grant of probate’.
This document recognises the authority of the executor to administer the will.
Banks, insurance companies and super funds will usually require probate before they will release any assets in the name of the deceased.
A grant of probate is also required if the executor will be selling or transferring any real estate.
Protecting the Estate
It is the role of the executor to protect the assets of the estate.
This may involve storing valuables, keeping surplus funds invested, insuring all property and protecting any business interests.
The executor must also make sure the assets of the estate are not diminished due to their action or inaction.
This might occur if the executor fails to administer the estate within the prescribed time limits and incurs unnecessary legal costs.
In situations such as this, the executor may be held personally liable for any reduction in the estate assets.
Seeking the advice of an experienced lawyer will help an executor ensure this doesn’t occur.
Determining Assets and Debts
The executor will need to confirm the assets and debts held by the estate at the time of the will-maker’s death.
This is achieved by contacting financial institutions, relevant companies, and performing land and property searches.
The executor will prepare a statement of assets and liabilities covering:
- Personal effects
- Taxation details
- Cash and other securities
- Business Interests
- Real Estate
- Debts Owing
- Debts Due
Defending the Estate
In the case where someone wants to challenge or contest the will, it is the executor’s job to defend the estate. Any executor in this position should seriously consider securing the services of a lawyer to guide them through the legal process related to a contest to a will.
Distributing the Estate
Once the assets of the estate have been established, and all debts paid, the executor will then distribute the estate to the beneficiaries.
This generally involves transferring cash and assets to the named heirs.
Unless there are extenuating circumstances, an executor must administer the estate within 12 months of the will-maker’s death.
Keeping Proper Records and Receipts
Executors are expected to keep proper records and receipts of all assets transferred in the distribution of an estate.
Although the role of executor is generally unpaid, executors are entitled to reimbursement for any out of pocket expenses related to the administration of the will.
Keeping proper financial records and saving receipts will make sure the executor is repaid from the estate for any reasonable admin costs.