When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death. A Will also describes who are to be your executors; that is, those whose role it will be to manage your estate’s assets and ensure the terms of the Will are carried out lawfully.
What is the role of an executor in a Will?
The role of executor is an important one. They are required to;
- Notify banks, the ATO and other organisations;
- Ascertain and control all assets;
- Identify beneficiaries and determine what their entitlement is according to the Will;
- Obtain a grant of Probate, if required;
- Pay liabilities and any other estate claims;
- Attend to the distribution of estate assets which may include the sale of real estate; and,
- Take possession or control of the deceased’s body.
Ideally these responsibilities should be appointed to someone who is considered capable and trustworthy. You are not limited to giving the role to family or even close friends. You may appoint a professional (such as a lawyer) in the role of executor, and importantly you can appoint more than one person to act jointly.
Unlike appointing an attorney for an Enduring Power of Attorney or a Substitute Decision Maker under an Advance Care Directive (where those you appoint need to sign the document agreeing to act), an executor does not need to sign your Will. Indeed, no-one has to act as your executor if they do not want to. After your death an executor appointed in your Will can renounce, meaning they can avoid any of the responsibilities required of an executor.
Without a willing executor you may be left with an administrator of your estate who is appointed by legislation rather than someone of your own choosing.
"In both these scenarios, there is a likelihood that these are not the people you would like administering your estate."
Consider what may happen if you were married (but separated), had two young children and you appoint a good friend as your only executor. Your wish is to give your estate to your children. After your death your friend renounces their role as executor. If that occurs, under the law, your estranged spouse will be entitled to manage your estate.
However, perhaps a worse scenario would occur if your estranged spouse was willing to renounce their entitlement. The next in line will be your children but, due to their age being under 18, the Public Trustee will play a significant role in the administration of your estate.
In both these scenarios, there is a likelihood that these are not the people you would like administering your estate.
It is our advice that all executors nominated in your Will are not only aware of being given that role, but that they agree and consent to doing so. They should also have a copy of the Will you have made. That way, upon your death, they have sufficient information to begin the process of administering your estate.
We strongly recommend that if you’re considering drafting a Will, you seek assistance from a lawyer experienced in Wills and Estate Planning.
You might find our "Wills & Estate Terminology" useful or you might like to read some more of our articles on all things to do with your Will, Power of Attorney, Advance Care Directive and other estate matters.