Why do I need more than one Executor for my Will?

You want to ensure that your estate is administered smoothly and efficiently on your death to ensure a drama-free transition of assets to your family.  Whether or not this hoped for result is achieved often depends on the care you have taken in identifying your estate planning objectives, how well your Will is drafted, and who you have chosen to be your Executor.  There are three reasons why we often advise clients to consider appointing more than one person to act as the Executor of your Will or at the very least to act as a backup Executor.

What is an Executor?

Your Executor is the person chosen by you and appointed in your Will who is tasked with administering your affairs (referred to as your ‘estate’) on your death.  Their responsibilities broadly include:

  • locating your last Will;
  • arranging your funeral;
  • identifying your assets and liabilities;
  • obtaining probate of your Will;
  • paying your debts; and
  • distributing your estate in accordance with your directions in your Will.

Why do I need more than one Executor?

There are three reasons why you should consider appointing more than one Executor in your Will.

Reason 1: The job of an Executor can be challenging.

It may be emotionally difficult for the Executor to act, or the estate may be a complex one to administer and too big a job for one person to do quickly.   Even worse, the beneficiaries may be disgruntled and start arguing with each other and challenging the Executor’s decisions or even the terms of the Will itself.  For these reasons, it is often a good idea have more than one person appointed to act as your Executor so they can provide support to one other.  If you wish to impose an extra level of rigour to their decision-making, then you should appoint them to act jointly.

Reason 2: Before probate is granted, the Executor you appoint may be unable or unwilling to act.

Before probate is granted, your Executor may have died, become incapacitated or just be unwilling to act.  Remember, the role of Executor may be a burden rather than an honour for some people.  If the Executor named in your Will cannot or will not act, someone (usually one or more of the beneficiaries of the residual estate) must apply to the Supreme Court to be appointed to administer your estate.  This is done by lodging an application for Letters of Administration with the Will annexed.  The grant of Letters of Administration will allow the Supreme Court to appoint the applicant to administer your estate as if they were the Executor you named in your Will.  However, instead of an Executor, they will be called an Administrator.

If the beneficiaries so request, the Public Trustee or a private trustee company may be appointed by the court to administer the estate.  If there is no person in the State over the age of eighteen years willing or able to act as Executor, the court may order that the administration be granted to the Public Trustee.

Administrators must carry out the same duties as an Executor, plus a few additional duties.  These duties include the requirement to account to the Public Trustee’s Office in the relevant State or Territory about what they are doing.

Reason 3: Your Executor dies after you and after probate is obtained but before administration is complete.

Assuming your sole Executor was able to successfully obtain a grant of probate for your estate before they themselves died; the Executor named in your deceased Executor’s Will,  will assume the same role for both of you.  Obviously, your Executor’s Executor is unlikely to be the person you want to administer your estate.

The issues raised by the death of an Executor are quite complex depending on the stage that matters have reached, and legal advice should be sought

Solution

We usually recommend that you appoint:

  • more than one Executor; and/or
  • one or more back-up Executors.

That said, don’t get too carried away.  Having many Executors appointed to act at the same time can create a situation known as ‘too many cooks in the kitchen’ and slow down the administration of your estate.  This brings us to the next point…

Who do you appoint as you Executor?

Choosing your Executors is an important decision, and you ideally want them to get along.

For this reason, we often recommend that you appoint a family member and an appropriate professional advisor as your joint Executors.  Click here to find out more about how to choose your Executors.

What do I do now?

We want to help you.  Whether you need to update your existing estate planning documents or prepare them for the first time, contact us on 1300 654 590 or send us an email. We will prepare estate planning documents that are tailored specifically to you and your family and ensure that the process is as stress-free as possible.

 

The information contained in this post is current at the date of editing – 9 December 2022

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