One of the most important decisions you’ll make in your estate planning process is choosing an executor for your Will. This person will carry out your final wishes, ensuring that your estate is distributed according to your instructions. Being an executor is a big responsibility—it requires time, attention to detail, and a deep understanding of your personal and financial affairs.
As Benjamin Franklin once said, “In this world, nothing is certain except death and taxes”—and an executor faces both, along with the challenges of managing family dynamics and navigating heightened emotions. From dealing with paperwork to managing family members and loved ones, the role can be complex. In this article, we explore the key responsibilities of an executor and offer practical tips on what to consider before appointing someone to act as your executor.
An executor is the person you appoint in your Will to manage your estate after you pass away (called “administering your deceased estate”). They will call in your assets, pay your liabilities (like funeral expenses and unpaid phone bills), defend any litigation brought against your estate, and distribute your estate in accordance with your Will.
An executor is a legal role and there are particular obligations and responsibilities your executor must meet when administering your estate. It’s a significant responsibility, and the executor must be prepared to navigate potentially complex financial and legal matters.
The role of an executor involves a wide range of tasks, and the specific duties will depend on the complexity of your estate, the particular terms of your Will, and any matters that come up with your loved ones or people you’ve gifted your estate to. Here are some of the key responsibilities an executor may be required to handle:
Locating and securing the Will
Your executor needs to locate your Will. They will also need to secure any important documents, such as deeds, insurance policies, and financial records.
Set your executor up for success by ensuring they know where your Will is stored and how to access it (particularly important if your Will is kept in a locked safe or cupboard). Complete your Letter of Wishes so your executor has all your important information in ONE place. Your executor’s job is made much more difficult (and takes much longer!) if they must search to find your Will, paperwork, and discover what assets and liabilities you have.
Applying for probate
Probate is the legal process of validating your Will and confirming your executor’s authority to administer your estate. If required, your executor will need to apply for probate with the Supreme Court of Queensland. We strongly recommend your executor seek legal advice before taking steps to deal with your estate or filing for probate.
Gathering and valuing assets
The executor must locate your assets, which could include bank accounts, real estate, investments, and personal property. They may need to obtain valuations for assets, but they should seek legal advice whether this is required or not before taking that step.
Your executor may need to take steps to secure and protect your assets, like changing locks and ensuring appropriate insurances are in place.
Paying debts and liabilities
We strongly recommend your executor seek legal advice before distributing any assets out of your estate. There may be personal repercussions for your executor if there are insufficient funds in your estate to pay outstanding debts and liabilities, such as taxes.
Distributing assets to beneficiaries
One of the final steps your executor takes is to distribute the remaining assets to the people you’ve nominated to receive gifts under your Will (called “beneficiaries”). This could involve selling assets, transferring ownership of property, or distributing funds from bank accounts or investments.
Managing ongoing financial responsibilities
If your estate includes assets that generate income (such as rental properties or business interests), the executor may need to manage these until they are sold or transferred to the beneficiaries. This could involve handling rental income, paying expenses, or overseeing the sale of the business.
Filing final tax returns
The executor is responsible for ensuring that your tax obligations are met. They will need to file your final personal tax return and a tax return on behalf of the estate itself. We strongly recommend your executor receive financial and taxation advice.
Dealing with disputes
In some cases, disputes may arise between beneficiaries, creditors, or other parties. The executor may need to mediate these disputes or work with legal professionals to resolve them.
Appointing the right person as your executor is critical to ensuring your estate is handled smoothly and according to your wishes. Here are some factors to consider when deciding who should take on this important role:
Trustworthiness and integrity
Your executor will be responsible for managing your assets and ensuring they are distributed properly, so it’s essential to choose someone you trust implicitly. This could be a close family member, a friend, or a professional, such as a lawyer or accountant.
Ability to handle financial and legal matters
Executors don’t need to be financial or legal experts, but they should be comfortable handling these types of matters and seeking advice from professionals (such as a lawyer and accountant). They may need to manage large sums of money, make investment decisions, or deal with legal proceedings. If your estate is complex, consider appointing someone with relevant experience or a professional executor (be aware, your professional executor may charge fees for their work – please seek advice from your estate planning lawyer).
Age and health
Your executor must be 18 years of age or over and have legal capacity. It’s important to consider the age and health of the person you choose. If your chosen executor is elderly or unwell, it might make sense to appoint a younger person as a backup or co-executor.
Willingness to serve
Being an executor can be a time-consuming and challenging task, so it’s crucial to choose someone who is willing to take on the responsibility. Have an open discussion with the person you’re considering to ensure they understand what’s involved and are willing to take on the role when the time comes.
You can have this conversation before or after you’ve had advice from your estate planning lawyer – if you’re unsure, best to speak to your lawyer first. That was you can go into the conversation feeling confident and able to answer any questions that may come up.
Geographical location
Your executor will need to handle various administrative tasks. If your executor is based outside of Australia this may cause additional costs and/or delay to the administration of your estate (for example, due to time differences, for their signature on documents to be notarized etc). There can also be some additional tax consequences – you must discuss this and get advice from your estate planning lawyer.
Relationship with beneficiaries
If there’s potential for conflict among your beneficiaries, consider whether your chosen executor is someone who can mediate disputes and act impartially. An executor who has strong relationships with the beneficiaries may help ensure that the process runs smoothly and that any disagreements are resolved quickly.
It’s essential to appoint backup executors in case your primary choice is unable or unwilling to serve when the time comes. Circumstances such as illness, incapacity, or death could prevent your chosen executor from fulfilling their role. Naming a backup or co-executor provides an extra layer of protection to ensure your estate is properly managed and someone you know and trust is stepping into that role.
Once you’ve chosen your executor, there are steps you can take to make the process as smooth as possible for them:
Keep detailed records
Ensure that after your death, your executor has access to important financial and legal documents, such as your Will, bank account information, and insurance policies. Keeping these documents organised and up to date will make their job much easier.
Discuss your wishes in advance
Have a conversation with your executor about your preferences for how you want your estate to be managed and distributed. While your Will should clearly outline your wishes, discussing them in person can provide additional clarity and guidance.
Ensure you also record your directions for your estate in your Letter of Wishes. A Letter of Wishes can minimise the potential for misunderstanding that may arise from a verbal discussion alone. It is a lasting communication tool, ensuring that your guidance is easily accessible despite the passage of time.
See our previous posts (and talk to your estate planning lawyer!) about the key differences between a Will and Letter of Wishes, and how they work together to provide ultimate protection and peace of mind.
Review your estate plan regularly
Life circumstances change, and your Will should be updated accordingly. Make sure your executor is aware of any changes you make to your plan or changes in your wishes.
Appointing an executor is a critical component of your estate plan. The person you choose will play a vital role in ensuring that your wishes are carried out and that your estate is managed efficiently.
We understand the challenges of making these decisions, and we’re here to guide you through the process. Whether you need advice on choosing an executor or want to ensure your Will is up to date, we can help you create an estate plan that provides peace of mind for you and your loved ones.
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