Appointing executors and executor’s extended powers

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Appointing executors and executor’s extended powers

Choosing the executor of your will is an important decision. The person you choose is responsible for the administration of your estate following your death – from identifying and collecting your assets, to paying your debts, maintaining or selling property and distributing your estate. An executor holds this responsibility until the administration of your estate is complete.

The choice of an executor or executors is up to you. You may choose one or more individuals from your family or friends, a lawyer or other professional, the NSW Trustee and Guardian or a private trustee company. It’s important to choose someone who you trust, who will act responsibly and who will carry out the wishes in your will and manage your affairs the way you intended, without being influenced by other parties.

It’s also important that this person has agreed to be your executor. The role of the executor of a will includes:

  • locating the will;
  • applying for the death certificate;
  • notifying the beneficiaries named in the deceased person’s will;
  • looking after the estate and ensuring all assets including property and investments are safe;
  • valuing the estate and identifying and accounting for all assets and liabilities;
  • obtaining from the court an authority to administer the estate, known as a grant of probate;
  • arranging the disposal of the body and looking after the funeral arrangements if the will specifically requests this, or if there is no next of kin available;
  • lodging all necessary tax returns;
  • arranging the sale of assets, if any;
  • paying all debts;
  • keeping proper accounts; and
  • establishing testamentary trusts, if any, for beneficiaries.

Generally, an executor will only be paid for the time spent as an executor if the will specifically says the executor should be paid. That said, any executor has the right to apply to the Supreme Court for commission regardless of what the will says. The court usually won’t award any commission if the executor is also a beneficiary under the will.

If a person is unwilling or unable to act as executor, they can formally renounce their appointment as executor. This renunciation should be done as soon as possible, because a renunciation may not be effective if the executor has completed even some of the executor’s duties. The substitute or alternative executor will then act. If no alternative is named in the will, or there is no executor named at all, the Succession Act 2006 provides who will manage the estate. This is usually the major beneficiary. Rather than being called an executor, this person is called an administrator, but their responsibilities are similar.

For further advice or for assistance in drafting a will tailored to your individual circumstances, please do not hesitate to contact us at cohenandkrass@cohenandkrass.com or on +61 2 9299 9920.

From the legal team at Cohen & Krass – where in-depth knowledge and extensive experience combines to give you the service and solutions you deserve. 

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