What is an executor?

An executor is a person appointed in your will to administer your estate, ensuring that your final wishes are honoured, debts are paid, and your assets will be distributed to the beneficiaries of your choosing. 

You can name as many executors as you like (both primary and substitute). However, the maximum number of people who can act as executors at any one time is four.

An executor is key to the probate process, which is the legal process where the Court of the appropriate jurisdiction confirms the validity of a deceased person's will and grants authority to the executor to administer and distribute the estate. It's essentially a court order that verifies the will and allows the appointed executor in the will to administer the deceased's assets.

Key Responsibilities

If you have appointed an executor, their duties will begin after your death. Their first task is to locate your last and final will and apply for a grant of probate with the relevant probate court. Once the Court approves the will and grants the probate to your executor, their legal authority begins.

The primary responsibilities are identifying and securing the deceased's assets, including bank accounts, properties, shares, personal belongings, jewellery, and other personal belongings. Your executor must ensure these assets are protected from theft, loss, or damage during the estate administration process.

Your executor is also responsible for paying debts and taxes. They must notify creditors of the death, assess the validity of claims, and settle any outstanding liabilities. This may involve liquidating assets to raise funds (i.e. selling of properties). Furthermore, your executor must file your final income tax return and the estate's tax returns (if applicable).

Finally, once all debts and taxes are paid, your executor must distribute your assets according to the instructions set out in your will. This process will generally involve transferring property titles, distributing funds collected from the closure of bank accounts and sale of assets, or physically delivering personal belongings to the appropriate beneficiaries. 

If the will is unclear or contested, your executor may need to work with lawyers, beneficiaries, accountants, and the Court to resolve issues or defend any potential claims.

Legal and Ethical Obligations

Your executor has a fiduciary duty to act in good faith, with honesty, and in the best interest of your estate and its beneficiaries. This means they must avoid conflicts of interest and not profit personally from their role unless the will authorises them to be reimbursed for their time and effort to manage the deceased's estate.

If your executor fails in their duties, they can be removed and potentially held liable for damages.

Choosing the Right Executor

Choosing the right executor is one of, if not the most important decisions that you can make in the estate planning process.

As outlined previously, an executor is responsible for overseeing a series of legal procedures and administrative tasks. Technically speaking, you can appoint anyone in the world to be your executor (i.e. the Prime Minister of Australia). However, an executor is not obliged to accept their appointment. If an executor without their consent, they may simply renounce from this position. Therefore, before you officially appoint an executor in your will, it is preferable to discuss this with your preferred executor to ensure that they will be willing and able to act in the event of your passing.

In addition to the above, the age and the personal circumstances of a proposed executor are also factors to consider when selecting an executor. If your proposed executor is older than you or is in poor health, there is a likelihood that they may pass before you, leaving your estate unadministered if you do not update your will in time.

Last but not least, you should always consider communication skills, capacity, and trustworthiness when selecting an executor. Estate administration is often complex, time-consuming and stressful. Choosing a competent, trustworthy, and patient executor will ensure your estate can be managed appropriately even in difficult and hostile situations. 

Conclusion

In conclusion, your executor must ensure that the instruction set out in your last and final will be carried out. 

When it comes to selecting an executor, it is crucial for you to consider all circumstances and choose the right executor in the estate planning process to ensure your estate will be preserved and distributed in an efficient manner.

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