Most people realise the importance of having a will. It is increasingly important in the present climate of rising property prices and compulsory superannuation, where people can now have a fairly sizeable pool of assets to leave the others upon their death.
One of the important elements of a will is having a person or persons appointed as ‘executor’. While a lot of thought can go into who is going to receive what under the will, oftentimes less thought goes into who is going to be appointed as an executor.
The executor will be the person responsible for administering the will upon the person’s death and looking after that person’s ‘estate’. Ordinarily the executor will need to obtain a grant of ‘probate’ from Court – essentially a declaration from the Curt that the will is valid and a public record noting the executors are allowed to deal with the assets of the deceased. The executor will then need to collect all of the assets of the person who died, pay for any liabilities (including tax) that person may have had and then distribute whatever is let to the beneficiaries of the will in accordance with its terms.
The duties of an executor are important and can be broadly summarised as being a duty to properly preserve, protect and administer the estate. This includes a duty to ensure debts are paid, not using assets for personal use, not selling assets such as property for less than proper value and ensuring the directions in the will are followed.
An executor who fails to administer the estate properly, and in doing so causes loss to the beneficiaries, can be held personally liable for that loss.
Given the importance of the role, the appointment of someone as an executor is something that should be considered carefully.
There are two aspects to this, with each looking at the issue from a slightly different perspective. The first aspect is from the perspective of the person making the will. IT will be important to the will-maker that the executor is someone who will carry out his or her wishes, as expressed in the will, and has the skill set to do so.
If appointing more than one person, the will-maker should consider whether the appointment is practicable. If a brother and sister have been fighting with each other for several decades, it’s unlikely they’ll sing in harmony when acting as executors.
The second aspect is from the perspective of the person or persons asked to be an executor. Being an executor carries important duties with it and isn’t something that should be agreed to lightly, particularly when an executor can potentially be personally liable where he or she is not properly discharging his or her duties.
Everyone should therefor give proper thought and consideration to who is appointed as an executor when putting their will together, rather than having it as a mere afterthought, as can sometimes be the case.