When it comes to Wills, some of the most common questions relate to executors. Who should be chosen for this job? What do they do? Should they be paid?
Here are some of the most common, frequently asked questions, about executors.
Who should I appoint as my Executor?
Any adult who is capable and who you trust. This could be a parent, a spouse, a sibling or cousin, or a trusted friend.
Ideally, at least one executor should be located in the state or territory where your assets are.
Should I appoint just one person, or more?
You can appoint one person to act on their own as executor, or you can appoint more than one person.
If you have more than one executor, you can choose as to if they are to act together (which is referred to as acting ‘jointly’), or either together or on their own (which is referred to as acting ‘jointly and severally’).
You can also nominate a sub-executor (or sub-executors), who are to step in should your primary executor (or executors) be unable or unwilling to perform the role when the time comes. This may be due to ill health, being based overseas or far away, or because they have passed away themselves.
What are Executors’ obligations and duties?
There are a number of duties and obligations that an executor must meet.
If they take on this important role, they must do it properly; they cannot delegate their role to someone else, unless services which need to be provided by a legal professional. They cannot act in their own self interest.
Some basic duties include:
- Duty to arrange for the burial;
- Duty to identify the estate and its assets and debts;
- Duty to pay out debts with due diligence; and
- Duty to uphold the terms of the Will.
This last point is of particular note: Executors can only distribute under the instructions as provided in Will, not as they themselves would like to. They are liable to your beneficiaries, and cannot give themselves a benefit over that of another beneficiary under the Will.
Executors also have a duty to discharge any contractual obligations of the deceased before distributing the estate to its beneficiaries, and fiduciary duty to administer the estate for the benefit of the beneficiaries.
Does an Executor get paid?
Many executors – although not all – are also beneficiaries under the Will. But as to if an executor can be paid for performing the role of executor is another question entirely.
Unless otherwise stated to the contrary in the Will, an executor may apply to the Court for an ‘executor’s commission’, but only once the estate is finalised.
This commission is calculated as a percentage of the value of the estate, usually in the range of 0.5 to 3%, depending on the size of the estate, as well as the complexity of the role, and the amount of work required.
The commission must be approved in writing either by the beneficiaries, or as ordered by the Court.
What should I do next?
It’s always best to have your Will drafted by an experienced Wills and Estates lawyer. They are often best placed to advise you in all areas, including the important decision as to who you should chose to be your executor.
Contact us or call our office on (02) 9415 8192 to book an appointment with one of our experienced lawyers.