Choose the Executor of your Will carefully to avoid your beneficiaries having to pay expensive legal fees to settle your estate. If your Executor is a law firm or public trustee, they will charge your estate excessive legal fees to administer and settle the estate. Ideally, the Executor should be one or two of your beneficiaries as they will work in the best interest of the estate. The beneficiaries are the best people to manage the affairs and settlement of the estate as there is no conflict of interest. They will be working to settle the estate and make the maximum estate distribution to themselves. If the Executor(s) requires legal assistance, they can hire a lawyer to perform specific legal tasks.
Why a Will Needs an Executor
When a person draws up a Will, they need to appoint someone to administer their estate when they die. This person is known as the Executor.
The Executor is responsible for carrying out the terms of the Will. The executor will sometimes need to apply for probate. Probate means the official recognition that a Will is legally valid. Make the application to the Probate Registry of the Court for a “Grant of Probate”. The grant is a document certifying that the Court recognizes the authority of the Executor(s) to deal with the estate. This will enable the Executor(s) to collect the assets and pay any debts of the deceased person and then to distribute the estate as directed by the Will.
Choose the Executor of your Will
You can choose the Executor of your Will to be any person of legal age, sound mental capacity and who agrees to become your executor.
Many people simply choose the Executor of your Will to be a close relative. The only issue to remember is that if you name an older relative, such as your parents, they may not survive you. If you are older and your parents are old, name a person the same age or younger than yourself.
I recommend you choose the Executor of your Will to be one or more beneficiaries as Executor(s).
This closely follows the line of ascendency that is outlined in the intestacy law. This is the order in which your estate would be distributed if you did not have a valid Will.
Order of Ascendency for an Intestate Estate
- spouse (including de facto partner)
- children
- grandchildren or great grandchildren
- parents
- brothers and sisters
- children of brothers and sisters
- grandparents
- uncles and aunts
- first cousins
Name your spouse and/or children as your first choice to be your Executor(s). If you are not married and have no children, name your brothers and sisters as your Executor. Your next choice would be your brother’s/sister’s children, etc.
When you have no relatives name a law firm as Executor.
If you have a Will created by the Public Trustee (Government Agency) they will be named Executor.
If you have a Will recorded by a law firm, they will be named Executor because they want to have the business when you die.
Note that, the Public Trustee and law firms charge considerable fees to administer a deceased estate. The fees are based on the number and value of assets, types of assets and liabilities, complexity of the estate and contents of the Will. The fees can easily exceed $20,000 or more which means the beneficiaries receive less money.
It is far better to appoint a beneficiary or relative to the role of Executor so that your family (beneficiaries) don’t have to pay enormous legal fees from your estate when you die.
You can appoint a close friend (or friend of the family) as Executor. Always ask them if they are happy to be the Executor.
I would like to see changes to the law to prevent the Public Trustee and law firms acting as Executor on Wills.
It should be mandatory to include one or two beneficiaries as Executor of a Will. If the beneficiaries do not wish to administer the deceased estate themselves, they can appoint a lawyer and pay the legal fees.
When to Update Your Will
Update your Will when significant events happen in your life, such as, marriage, divorce, birth of your children, deaths of close relatives, purchasing or selling property and any other life changing event.
Generally, a Will remains intact until you marry, divorce or make some formal amendments or adjustments to it.
If you marry after the date of your Will, unless the Will was made in contemplation of the marriage, the Will is revoked.
On marriage it is strongly advisable to execute a new Will.
It is advisable to change your Will if:
- you change your name
- a beneficiary changes their name
- a beneficiary dies
- marriage
- divorce
- birth of a child
- buy or sell property
- you acquire an inheritance or other large sum of money
If your Will is significantly out of date when you pass away it can cause unnecessary legal problems and stress for your surviving beneficiaries. For example, a Will may have left property to a beneficiary who is no longer alive. The Will is partially invalid, and the person dies partially intestate.
When you are young you may want to update your Will every ten years. When you are older you should update it more frequently.
How Do I Revoke an Old Will?
The simplest way to update your Will is to create a new Will as this invalidates any previous Wills. The first clause of the Will uses words to invalidate any older Will.
Who Can View a Will?
If you’re a beneficiary in the Will or beneficiary in any previous Will of that person, this entitles you to see and receive a copy of a Will following the death of the deceased.
The following entitles you to see the Will and get a copy, if you’re
- spouse, parent or child of the deceased.
- parent or guardian of a child who is a beneficiary of the Will.
- entitled to a share of the Estate or property if there had not been a Will (see intestacy rules).
- person who the deceased owed money to.
- dependent who may have an entitlement to claim maintenance from the estate of the deceased.
If you fall into these categories, and there is a probate application, this entitles you to inspect the documents the court holds.