When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors - the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully.
The role of executor is an important one, they are required to:
- notify banks and other organisations and the ATO;
- ascertain and control of all assets;
- identify beneficiaries and determine what their entitlement is according to the Will;
- obtain a grant of Probate;
- paying liabilities and any other estate claims;
- attending to the distribution of estate assets which may include the sale of real estate;
- and even take possession or control of the dead body.
Usually the appointment of someone who is trustworthy and responsible is ideal for the role of executor.
It is critical that your Will be professionally prepared by an experienced solicitor for a number of reasons, one of which is the risk that your chosen executor may fail to be actually appointed for reasons of uncertainty.
What might constitute uncertainty in the appointment of an executor?
There have been a number of recent South Australian cases where the Supreme Court had to deliberate on the particular wording of a homemade Will an in particular the appointment of an executor.
In simple terms, the appointment of an executor in a Will must fail if there is uncertainty. An example is where a home made Will appoints the husband of the deceased's sister(not using his name). There is a problem if the deceased had two or three sisters all of whom are married.
There is also uncertainty where you try to appointment someone by reference to their title and not their name; for example to appoint two of the partners of a particular law firm. It is uncertain as to which two partners are being referred to.
Particular care must also be taken with the naming and spelling of the executor you wish to administer your estate. There have been occasions where someone has nominated John Smith as their executor but that person's actual name is Arthur John Smith(people just commonly call him John Smith). It is further complicated where, perhaps, Arthur's son is named John Arthur Smith......do they wish to appoint the father or the son as the executor?
It is possible that a small error such as this in your Will can create unnecessary costs and delay to the administration of your estate which will only hurt the ultimate beneficiaries of your estate. We strongly recommend you do not use "DIY Will Kits" and that you seek legal advice from a solicitor experienced in drafting Wills, to have your Will prepared.