*The contents in this blog relates to legislation in New South Wales.
When making a Will it is not only important to decide who you want to give your assets to but also who you want to appoint as your executor. Your executor Is the person or people who will attend to administration of your estate.
Sometimes people may appoint an executor but do not check if that person is willing to take on the role of being an executor. It is important to make your executor aware that you have appointed them and you should tell them where your Will is kept or give them a copy of your Will. You do not need to tell your executor what is in your Will but your executor does need to know where your Will is stored.
It is possible to appoint more than one executor but if you do you need to ensure that your executors will be able to work together to make decisions regarding your estate. Sometimes executors cannot agree on decisions or fail to attend to administration of an estate and it can be very costly for the Estate. Sometimes it is necessary for Court proceedings to be commenced for an executor to be removed if they have not carried out their duties.
Often an executor is also a beneficiary of the Will, however, sometimes an executor is a trusted family member or friend who is not a beneficiary. In those circumstances, it is important to consider whether you wish to give the executor a monetary gift for carrying out their duties as an executor. Otherwise an executor is entitled to claim commission for their “pains and troubles” in carrying out their duties as an executor.
It is also possible for a professional executor to be appointed, however, the executor will charge a fee for carrying out their duties as executor.
Often parents have more than one child and are concerned about appointing only one child as an executor as they don’t want to “exclude” the other children, however, it can often be a burden to be an executor. It is not a benefit and you should carefully consider who the best person would be to take on the responsibility.
The first role of the executor is to locate the original Will and make funeral arrangements. Sometimes the deceased’s wishes regarding a funeral are expressed in the Will, however, often they are not and it us to the executor to make decisions about the funeral and whether the deceased is cremated or buried. These are important decisions and can often lead to disputes between family members.
The next responsibility of the executor is to deal with the assets and liabilities of the estate and distribute the Estate in accordance with the Will. At Turner Freeman we can guide you through this process and attend to obtaining a Grant of Probate from the Supreme Court of New South Wales entitling you to deal with the Estate.
After a Grant of Probate is obtained the Estate can be distributed once the necessary Notice has been published, assets collected, liabilities paid and taxation attended to.
Sometimes it is not necessary for an executor to obtain Probate. At Turner Freeman we can advise you whether this is necessary.
If a claim is made on the deceased’s Estate, the executor is responsible for defending that claim and proceedings may be commenced in the Supreme Court of New South Wales in which the executor will be named as the Defendant. At Turner Freeman we can act on your behalf in defending the estate.