Do I have to be an executor?
You do not have to be an executor or administrator.
Even if you are named in the will and no one else is named, you can choose not to do it. If you choose not to act, then someone else will have to do it instead.
This person will be whoever else the will-maker (“testator”) named in his or her will or if there is no one else named in the will who is willing and able to act then someone who is eligible in law will need to apply to act as administrator.
If you do not wish to act as an executor, you can either renounce your role completely, meaning you are choosing not to act to as executor now or later no matter what, or you may choose to have leave reserved to you. This latter option effectively means you will be on “standby” as executor, and will only step back into that role if required.
If you choose to renounce or have leave reserved to you, then you will not have the duties and powers of an executor.
Can I appoint someone else to represent me as executor?
The appointment of an executor in a will is an important and significant decision by the testator and is not treated lightly by the Court.
An executor cannot simply choose someone else to take his or her place, however, an executor can instruct a lawyer to assist him or her with the role.
However, where an executor or a person entitled to apply as administrator resides outside South Australia, a grant may be made to that person’s attorney under a specific type of power of attorney for that executor’s benefit and until he or she obtains a grant.
There are also provisions in law to allow for persons to apply for a grant and act on behalf of people who would have been eligible to apply for a grant but for being a minor or suffering a mental or physical incapacity, as well as those who may suffer a mental or physical incapacity after having been issued a grant.
If you are named as an executor and want to discuss your options or need some help, call one of our wills & estates lawyers now.
