Legal Comment by Mark Illidge of Hinterland Lawyers

August 2007

The key to having the provisions of your will carried out is to appoint competent, responsible and trustworthy executors. Making a bad choice as executor can result in favouritism among family members, poor communication with family members, bad financial decisions regarding the estate’s investments and even misappropriation of the estate.

The most common question we get is… “What does an executor do, and who should be the executor?”

The main job of the executor is to ensure assets are distributed according to the deceased's wishes. This generally includes compiling an inventory of assets and liabilities, completing tax returns for the deceased, applying to the court for a Grant of Probate, publishing notices regarding an intention to distribute assets and making decisions about any business run by the deceased. Generally, an executor will engage the services of a solicitor to assist them. However, at the end of the day, it is the executor who is legally responsible for seeing that the estate is distributed in accordance with the deceased's wishes.

We recommend that will-makers advise their proposed executor of their intention to appoint them, and give them the chance to opt out if they don't want the responsibility. We also recommend that more than one executor is appointed to facilitate more balanced decisions. However, it is important to ensure that the executor's can work together. If not appointed to act jointly, then an alternate executor is recommended in the event that the first executor predeceases the will-maker.

With a complicated estate appointing an independent third party as executor can be useful. Some people choose trustee companies, although they may take a percentage of up to 5.5% of the estate as a fee. Accordingly, those with uncomplicated affairs, or those with capable honest people in the family can save a considerable amount by appointing a family member as executor, thereby keeping it in the family.

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