This guide provides an overview of an executor of a will meaning the person(s) or company you appoint in your will to oversee the administration of your estate according to your wishes and law.
We’ll be covering important questions to ask yourself when appointing the executor of your will such as:
- who can you appoint?
- what things should you consider?
- what powers will they have?
Who can be an executor of a will in Australia?
In Australia, an executor must be at least 18 years of age.
The ‘estate’ is your property which is known as a ‘deceased estate’ when you are dead. Your appointed executor(s) hold your estate on trust to administer and distribute it according your will and the law.
Is it any different in Queensland?
In Queensland, an executor must be 18 years of age. However, rule 639 of the Uniform Civil Procedure Rules allows the Queensland Supreme Court to grant administration to the guardian or another appropriate person if the executor is a minor.
You may appoint joint executors but no more than four (4) can be appointed together. You may also appoint substitute executors in the event your first choices are unable or unwilling to take up the role.
Considerations about your appointment
Your executor is usually given broad powers to enable them to administer your estate without the need to apply to the Queensland Supreme Court for orders approving their proposed course of action.
This means it is important you appoint an executor you trust. Some questions you should ask of your prospective appointees:
- Appointing Joint Executors: Do they get along? If not, it’s wishful thinking to expect parties who don’t usually get along to bury the hatchet in the pressure cooker environment of estate administration.
- Appointing Successive Executors: If your chose executor(s) are no longer alive, it’s a prudent option to appoint a “back up” executor.
- Appointing Professionals: Is the person(s) you have in mind a Solicitor or Accountant? If so, do you wish for them to charge for their time to administer the estate?
What are the powers of the executor of a will?
In Queensland, there are two sources of the executor’s power:
- The Will;
- Legislation: the Trustees’s Act 1973 (Qld).
Common powers include:-
- the power to advance any legacy given to a minor to their guardian. Usually with a restriction to use it for the minor’s education and/or advancement in life;
- deal with your property, including mortgage it. While not a common choice, granting this power allows the person you appoint flexibility (e.g. to improve the property by renovation or development, or to pay an interim distribution to beneficiaries while the right sale price is achieved).
What duties do they have?
An Executor is obliged to administer the estate according to law and the will for the benefit of the beneficiaries, of whom he or she may be one. This is the overriding duty.
Other duties and obligations include to:
- collect and preserve assets. Pay all liabilities including completing final tax returns;
- administer the estate in timely fashion. Any legacies or bequests not distributed within 12 months may be accrue interest payable by the executor(s);
- account for the assets, liabilities, income, expenses and distributions at the completion of the estate and present it to the Court if required.
Read more: The Complete Executor’s Checklist & Guide in Australia
Can the executor of will also be a beneficiary?
There is no restriction on executors receiving a benefit under the will.
However, they should not be a witness to the will as doing so calls into question the validity of the will.
The ‘witness beneficiary rule’ prohibits a beneficiary from being a witness to reduce the likelihood of fraud. At worst, it can mean the gift to the executor beneficiary fails. At best, it will involve an application to prove the will is valid and was not made under duress or otherwise.
What is Executors Commission?
An executor is entitled to remuneration for their ‘pains and trouble’ administering the estate. This is known as the Executors commission and is payable whether the executor uses a lawyer to help or not.
Are there Executors Services to help administer estates?
Administering an estate is a complex and time consuming process. Most executors appoint a deceased estate probate lawyer to handle the majority of the legal and administrative hassles. The cost is paid from the estate before distributions are made to the beneficiaries.
