Who should I choose as executor of my will?
Pieter Brueghel the Younger - Village Lawyer; 1621

Executor of a will is a position not usually sought by legal practitioners, but a professional can be appropriate in certain circumstances: Pieter Brueghel the Younger – Village Lawyer; 1621

The executor of a will is the person who administers your assets after you have died. It should be a person you trust and who is responsible and can act impartially according to the terms of your will.

An example of an important task conducted by an executor is to arrange for the transfer of title of any real estate in the deceased name into their own name, engage the real estate agent, facilitate the sale, and arrange for the payment of the net proceeds of sale to the beneficiaries. Of course executors will commonly instruct a solicitor to help them with the task but it still requires a person who is comfortable with such transactions.

A second example of an important task conducted by an executor is to act as trustee of any trusts contained within the will. For example, if a partnerless testator was to die leaving young children who were beneficiaries the executor would be required to act as ‘trustee’ of the estate for a significant period of time. The executor/trustee would be required to utilise any estate monies for the ‘maintenance, education, advancement and benefit’ of any minor beneficiary. This might include paying school fees, holidays abroad or other general expenses. The executor/trustee would need to arrange for annual accounting and tax returns of any trust depending on the trust income.

Generally speaking in simple husband/wife/partner mirror wills, you each appoint your partner/spouse as executor in the first instance. This would be recommended most commonly unless there was a reason not to. This may be the case when a partner is aged or suffering some form of impairment which would make acting as executor difficult.

The question is then, you need to choose an alternative in the event your partner has predeceased you. Options include a close family member (such as a child or children), a trusted friend, a professional (such as a solicitor or accountant), or even the NSW Trustee. Our view is that where possible choose a trusted family member or friend. When you are young an executor of a similar age is often suitable. As you get older a younger executor might be better. Depending on the estate (which is generally more complex as you get older and accumulate assets) the role of executor can be time consuming and stressful, especially for older people.

If you choose a professional (such as a solicitor or accountant) be aware that they may charge for time in a manner that a friend of family member do not.

It is also possible, and often wise, to appoint more than one person to act as executor. You can appoint multiple of your children, or a child and a professional. It is sometimes impracticable to appoint more than two. Each executor will need sign all the relevant documents. If the executors live in different locations in can be logistically difficult.

Finally, as it is common when executing wills to also execute an Enduring Power of Attorney and Appointment of Enduring Guardian, often a testator will choose the same person or persons as the Attorney and Enduring Guardian. Of course the choice is entirely up to you. Of course different people have different strengths. You can talk through these options with your solicitor.

Contact us for more information.