Creating a Will is an essential part of securing your future and providing for your loved ones after you pass away. Whether you create your own Will or work with an estates lawyer Brisbane, choosing your executor is one of the most important parts of the process. The executor you appoint can have a big impact on how your estate is managed. The right person can support your family and take a sensitive, caring approach to carrying out your last wishes. In this article we’re going to discuss the topic of executors in more detail and provide some insight on how to choose the right people for the job.
What is the Executor of a Will?
The executor of a Will is the person, people or organisation that’s responsible for managing your estate after you pass away. It’s the responsibility of the executors to do things like gather your assets, distribute the estate, resolve disputes, manage tax obligations and make funeral arrangements. As far as legally possible, your executors will act according to the wishes recorded in your Will.
Your executor’s primary duty is to the estate, not to your beneficiaries. This creates an important distinction that allows the executor to act as an impartial party and maximise the value of your estate.
The Role and Responsibilities of the Executor
Acting as the executor of a Will is a serious commitment of time and effort. Executing a Will typically takes 12 months, and it’s likely to involve many meetings, phone calls, emails and time spent tracking down assets. This process can be drawn out even further if there are disputes or legal issues that need to be resolved.
As the executor of a Will, your main responsibilities include:
- Contacting the deceased’s lawyer, accountant or family members to locate the Will
- Making funeral arrangements as per the wishes laid out in the Will
- Applying for a grant of probate so that you can access controlled assets such as bank accounts
- Assessing and gathering the estate’s assets and liabilities, such as real estate, loans, bank accounts, shares, businesses and more
- Managing disputes between beneficiaries and dealing with any claims that are made against the estate
- Taking care of taxation obligations, like lodging personal and business tax returns
- Distributing the estate and any gifts to the beneficiaries according to the wishes recorded in the Will
Things to Consider When Choosing Executors
Anyone over the age of 18 can be nominated as the executor of a Will. Most people choose their spouse, partner or children to act as executors, but you could also nominate friends, relatives or a professional such as your lawyer or accountant. You can nominate people to act individually, or you can nominate multiple people to share the responsibility as co-executors.
When choosing your executors you should pick people who are:
- Known to your family and likely to act with care and sensitivity
- Capable of being impartial when dealing with disputes
- Capable of handling complex documents and carrying out your wishes accurately
- Good at managing money and making effective decisions
- Available to put a significant amount of time and effort into their role
You aren’t required to notify someone that they have been nominated as the executor of your Will, but it’s a good idea to do so. Have a simple conversation with anyone you’re considering naming. This ensures that they’re willing and able, and it means the nomination won’t come as a surprise after you pass away. This conversation is also a good chance to give your executors a general idea of the contents of your Will. While you don’t have to do this, it allows them to prepare, and it can help them manage any disputes that arise after you pass.
Nominating a Professional Executor
In Australia, you can nominate up to four people or organisations to act as the executor of your Will. It’s strongly recommended that you nominate the maximum number of people, and that at least one of those people is a professional (such as an estates lawyer Brisbane or your accountant).
Nominating a professional ensures that the responsibility of executing your Will doesn’t fall to the Public Trustee in your state. While the Public Trustee will carry out your last wishes, they are still a government entity, and they are unlikely to approach the situation with as much care or concern as someone you know personally.
If you nominate a lawyer or trustee as an executor of your Will, they can claim up to 5% of your estate’s value as payment. It’s common for lawyers to claim 1%-2% of your estate, but they may apply to the court for a larger commission. This may seem like a major expense for the estate, but it saves your loved ones a significant amount of time and effort, so it’s often worth the cost.
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