Choosing your executor

Date: May 09, 2012
Document Type: Article

When making your Will one of the key decisions you must make is who to appoint as your executor.

The executor is the legal personal representative of the deceased who is entitled to apply for grant of probate of the deceased’s Will. The executor has power to:

·         locate the Will

·         notify the beneficiaries of the existence and contents of the Will

·         identify and call in assets of  the estate including preserving, insuring and valuing assets of the estate

·         identify liabilities of the estate

·         apply for a grant of probate of the Will

·         organize completion of outstanding and final income tax returns which might also include arranging calculation of outstanding taxation liabilities including Gain’s Tax. A tax clearance should be obtained from ATO before distribution of the estate

·         pay estate’s debts. Executor may have to sell the estate assets to discharge debts or discuss with beneficiaries the discharge of debts to preserve assets of the estate

·         distribute the estate

·         set up and establish trust if the Will so directs or if beneficiaries are under the age of 18 years or not legally capable in which case the executor is responsible for the ongoing administration of those trusts

·         consider and defend any claim brought against the estate including Family Provision Act’s claims.

For the above reasons, it is important to consider who you appoint as your executor. You can appoint more than one executor or a professional executor. You can also direct your executor to act through your solicitor.

The role of executor can be both onerous and time consuming. For this reason it is common for the Will maker to appoint more than one executor. In New South Wales there is no limit on how many executors a Will maker may appoint. From a practical perspective appointing many executors can be difficult because any decision made in relation to the estate must be made jointly and any paperwork associated with the administration of the estate must be signed by all of the executors.

If you need an experienced lawyer to draft your Will or assist you with the administration of an estate contact Dominic Wilson on 02 8268 4000.

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