What is an Executor of a Will?
The executor of your Will is the person (or people) you have chosen to be in charge of looking after the distribution of your assets. The executor should be over 18 years of age, someone you can trust and someone who can make decisions on your behalf when required. An executor’s responsibilities may include:
- Locating the Will
- Organizing for your burial or cremation
- Applying for “Probate” (i.e. formal authority from the court to execute the Will)
- Collecting all debts owing to you and paying all debts you owe
- Identifying and safeguarding all property and assets that form part of the Estate
- Obtaining valuations of the Estate (e.g. property, business interests, personal effects)
- Notifying all Beneficiaries named in the Will
- Distributing your assets in accordance with your Will, and
- Organising for income tax returns to be completed and tax paid
We advise that you choose at least two executors for your Will. There are two main reasons for this. Firstly, by the time you die one may not be available to act as your executor. Secondly, giving two people the job can lighten the workload as they can both look after the distribution of your assets.
Another important factor to consider is the possibility that you become incapacitated and unable to make decisions for yourself. You may wish to consider signing an Enduring Power of Attorney which gives the right to a person you nominate and trust to make decisions about your financial and, in some cases, medical affairs in the event you become incapacitated. If you need more information on an Enduring Power of Attorney, please contact our office.
What Decisions Might An Executor Have To Make?
If a specific gift in a Will no longer exists – for example, if you left somebody a property but sold it before you died, or shares you had gifted under your Will were no longer available – then your instructions to pass on the gift are no longer possible. This process is known as ademption.
When this happens, an executor may choose to distribute another of your assets in place of the specified gift. Usually, this will be an item with the same or lesser value. The powers of the executor in this situation may depend on the wording of your Will.
Can My Executor Be A Beneficiary?
The executor can be a beneficiary of your Will. An executor should be a person whom you trust a great deal as they carry out your wishes and make decisions on your behalf where necessary. Executors have a legal duty to always deal with your Will in the best interests of the beneficiaries and to protect the assets of the estate. If your executor is a beneficiary, they have a greater interest in ensuring your estate is looked after and distributed properly.
The executor doesn’t always have to be a beneficiary. For example, you may decide to have your solicitor or family friend act as your executor.
Should I Pay My Executor?
The main difference and consideration you need to make is if your executor does not receive anything under the terms of your Will, they can claim a fee for their time and costs dealing with the assets and administration of your Will. This money then comes out of the estate. If an executor is a beneficiary, they usually can’t claim a fee, even if you’ve only left them a small amount.
Can an Executor Contest a Will in Queensland?
In Queensland, one responsibility of the executor is managing and defending the estate against Family Provision Claims. However, if the executor were to meet the eligibility criteria, they could make a claim themselves.
Under the Succession Act 1981 (Qld), only a deceased’s spouse, child, or dependant can contest a will. These terms cover:
- spouses (including former spouses and de facto partners);
- biological and adopted children, stepchildren, and;
- dependents such as parents or minors financially supported by the deceased.
If an executor falls into one of these categories and wishes to contest the will, they must renounce their role by filing a Renunciation of Probate or Administration with the Will form with the Supreme Court of Queensland before beginning estate administration.
ORG Solicitors offer FREE initial claim assessments to help you form the most efficient, cost-effective strategy. Family Provision Claims have strict time limits, so it’s important to make a decision and begin this process sooner rather than later.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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