When it comes to making a will about how you wish your estate and affairs to be handled after you die, appointing an executor is one of the most crucial decisions you’ll make. This is because the person appointed as executor is the one entrusted with ensuring your wishes are carried out as you expressed them in the will.
An executor carries a fiduciary duty to act in the best interests of the estate at all times. For this reason, the person you name as executor must be trusted, responsible and respectful of the instructions in your will.
It should be noted you may appoint more than one person as an executor. Where there are multiple executors, they must jointly exercise their powers, meaning cooperation and consultation is essential in administering the will. Note that the Supreme Court of Queensland will only grant probate (a court document recognising the authority of a person to deal with a deceased’s estate) to a maximum of four people at any one time.
What are the key obligations of an executor?
The responsibilities of an executor in Queensland are set out in the Succession Act 1981 (Qld) (“the Act”). These include collecting and attending to the deceased’s real and personal estate; providing a full inventory of the estate as well as an account of how they have administered the estate when required by the court; deliver up the Grant of Probate or the Letters of Administration, when required by the court; distribute the deceased’s estate as soon as practical after ensuring any debts, taxes or other liabilities are paid; and pay interest on any general legacies in the will.
In many cases an executor will also be responsible for organising the deceased’s funeral; locating the will and advising the beneficiaries of their entitlements; obtaining valuations of the deceased’s assets; confirming insurance of assets; preparing tax returns and financial statements; transferring or selling assets: and defending the estate if someone commences legal action to recover against it.
Who should be appointed as an executor?
Because an executor needs to be a trusted person who understands your wishes and has a fiduciary duty to always act in your best interests, it’s common for people to appoint a close family member as executor of their will.
This is perfectly rational provided that the family member can carry out all the tasks required of an executor at a time when they will be experiencing grief and stress at the loss of the testator (the will-maker). Problems also sometimes arise when other members who are beneficiaries of the will have objections to a particular family member being appointed as executor. For this reason, many people appoint an independent person as their executor. Often this person will be someone they have had dealings with for many years, such as a trusted legal representative or financial planner.
Other important things to consider is that your executor is:
- An effective communicator, given they need to liaise with a wide range of people to administer the will;
- a neutral actor who always acts in the best interests of the will-maker and does not seek to gain profit or advantage from their position as executor;
- someone likely to outlive you; many people appoint a successor to the executor in case the latter dies before the person who made the will.
It’s also important that as the testator, you provide the executor with any information they may need to carry out their role after your death. This might include internet or other security passwords, and details of medical, financial and insurance policies.
The liability of an executor
If there are problems with the administration of your estates such as inadequate insurance or a change in the status of items to be distributed from the estate, it’s important to understand that an executor may be held personally liable.
If a person such as a beneficiary is aggrieved by the executor’s neglect of their statutory duties, that person may apply to the court for orders against the executor. The court can make an order for damages, for example, or for the executor to pay interest on money they have been in control of, as well as the costs of the aggrieved person’s application.
Even if an executor dies, their personal liability – passed to their personal representative/s – continues if it can be shown they wasted any property of the estate or converted any part of the estate to their own use.
There are legal protections for executors in section 44 of the Act where executors begin to distribute the estate, such as for maintenance and support of the deceased’s dependent spouse or child.
An executor is also protected against claims regarding the distribution of the estate if the distribution was properly made under the terms of the will; it was made no earlier than six months after the deceased’s death and the executor did not receive notice of an application (or intended application) against the estate; or, if notice of an application was received no earlier than nine months after the deceased’s death (unless the executor received written notice that the application had commenced in court).
Consult experienced legal professionals
Big Law helps people clarify the issues around appointing an executor every day. Our team has the experience and expertise to guide you through each step of the process to ensure you make an informed choice and avoid the problems that can beset estate administration. Contact our Strathpine lawyers by phone (1800 431 592 or email at [email protected] to schedule an appointment today.