Who Can Be an Executor of a Will in Australia and How to Choose One
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.
This article seeks to answer who can be an executor of a will in Australia and how to choose one.
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.
Who Can Be an Executor of a Will, and What are the Responsibilities of an Executor?
Who can be an executor of a will, and what are the responsibilities of an executor?
The executor of a will has numerous responsibilities. They must administer the deceased’s estate according to the law and the terms of the will. This typically includes tasks such as:
- Identifying and collecting the assets of the deceased
- Paying any debts or liabilities
- Applying for a Grant of Probate if necessary
- Distributing the remaining assets to the beneficiaries as per the will
- Managing any disputes that may arise between beneficiaries
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.
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.
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
Where Can I Get Legal Advice About Choosing an Executor?
Who can be an executor of a will, and where can I get legal advice in choosing an executor?
Choosing the right executor for your will is a critical decision that can impact the smooth administration of your estate. It can be helpful to seek legal advice on this matter, especially if your estate is complex.
A legal professional can guide you through choosing an executor, explain the responsibilities involved, and advise on your decision’s potential legal and tax implications.
Looking for Expert Advice on Choosing an Executor for Your Will?
Deciding who should handle your affairs after your passing is a significant decision. At Justice Family Lawyers, we understand the complexities involved in this process.
Our experienced team can provide the guidance and advice you need when choosing an executor for your will. Don’t leave such a crucial decision to chance. Contact Justice Family Lawyers today for expert advice.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.