For some, talking about death isn't easy - particularly when it's with someone close to you - but when you want to be sure that your loved ones will be provided for after your passing, or your wishes are carried out, it is a necessary conversation to have. The best way to ensure your wishes are met is by having an up-to-date legally binding Will, including an executor that you know will follow your wishes.
If you have been asked to be the executor for a friend or family member’s Will in the event of their passing you may be wondering what this means. Whoever nominated you likely chose you because you are level-headed, dependable, well-organized and they trust you. During what is often a highly emotional time, an executor must be scrupulous in their record-keeping and clear in their communication so it’s not a decision that is taken lightly.
Who can be the executor of a Will?
Nominating an executor can a difficult choice but anyone over the age of 18 is legally allowed to be the executor if they have the mental capacity to do so. Often people choose their partner, children or a close friend of the family - but some people opt for the family lawyer or accountant to take care of it if they want to have a neutral party to minimise the risk of arguments between beneficiaries.
Can an executor also be a beneficiary?
Yes, an executor of a Will can also be a beneficiary, and this is quite common. Keep in mind, if the executor is also a beneficiary the other beneficiaries may be extra diligent in ensuring your conduct your role correctly.
What information does an executor need?
If you are the executor you will need to ascertain information on the assets and liabilities of the estate, obtain taxation advice, financial advice and you will need the addresses and contact details of all beneficiaries. When it comes to preferences around funeral arrangements or sentimental possessions, you will also be required to address these issues. If you know you are an executor before the will-maker passes, it’s advisable to speak to the Will-maker about their wishes and ensure instructions around these are clear.
What are common problems executors can face?
One common problem that many executors face is how to distribute personal possessions that have very little financial value but are sentimental. Another question you may have is whether the deceased has any funeral preferences. It is good to get advice on things like this in writing prior to passing as well as knowledge of the location of the Will (usually held with a lawyer).
Responsibilities and duties of an executor
It is the executor’s responsibility to gather the assets of the deceased and use them to pay any outstanding debts and distribute the remainder of the assets (after removing the cost of administrative expenses) to whoever has been chosen as a beneficiary. These duties are not to be taken lightly as the executor can be liable if things are done incorrectly.
The process is quite involved and can require anything from organising the funeral to validating the Will and representing the estate in any legal claims. It also necessitates securing the deceased’s home and property so that it is safe and insured during the transfer period. Being an executor can be time-consuming and at times emotional whilst dealing with beneficiaries.
During the administration of an estate, it is not uncommon for an executor to have to pay for some expenses out of their own pocket as funds are not yet available. Because of this, we advise keeping a thorough record of any expenses incurred as you will be able to claim these back from the estate.
How long does an executor have to distribute the Will?
If you haven’t distributed cash bequests within 12 months from the date of death then you may need to pay interest to the beneficiaries. However, you cannot distribute before 6 months from the date of death in case someone contests the will. If you do, you can be personally liable to reimburse the estate.
Do I have to accept the role?
Not everyone appointed as an executor would like to accept the role and they have no obligation to do so. Ideally, though this is a decision someone would make prior to the person passing if they are aware that they have been chosen. If you change your mind and do not want to be the executor then the role will pass to the next nominated person in the Will and if there is no one then there is a list of people who have priority to become administrators of a Will.
Does the executor get paid for the work they do?
In Queensland there is no automatic right to payment for the work performed by the executor unless the Will specifies. Having said that it is appropriate for the Executor to engage professional people such as accountants, financial planners and solicitors to assist.
If however an Executor wants to be remunerated, the Court must authorise the payment to an Executor for their services. There is however no set amount and the extent of payment is related to the size of the estate and the pains and trouble incurred by the Executor in its administration of the estate. If however all beneficiaries were to agree to the Executor being paid, a private agreement could be entered into however in our experience that is rare.
Shine Lawyers Will’s and Estate Services
If you have been asked by a family member or loved one to be the executor of their Will and have questions about the process before you accept or you are planning a Will yourself, please feel free to contact Shine Lawyers and our expert Wills and Estate legal team can talk you through any concerns.
Written by Shine Lawyers. Last modified: March 19, 2020.