Administering a will need not be a complicated process, but with unclear or poorly worded wills or worse yet, no will at all, it may take several months to have all next of kin agree on an administrator, and get a court order to distribute the estate according the state’s own formula.
Therefore this article covers the duties of the executor, and provides actionable guidance on how to choose the best one for you.
What is an executor of a will?
An executor of a will is somebody explicitly named in a will or otherwise appointed by the court to administer the estate of a deceased person. You are giving this party responsibility to carry out your wishes with regards to your possessions and property.
By appointing an executor, you are appointing an agent to work on your behalf. This party must avoid conflicts that arise in terms of personal interest and those of the estate. This party therefore must always seek to act in the best interest of the estate and may be called upon by the court to defend the estate against creditor claims or to file claims on other parties on behalf of the estate.
How to choose an executor for your will
Legally, you can appoint anyone aged 21 or above, that is not bankrupt and is of sound mind to be an executor of your will. There’s no rule against beneficiaries of your will being your executors. It is common for people to choose their spouse, civil partner or children to be an executor.
Ask yourself these questions when choosing an executor:
- who do you trust to follow your wishes?
- will they treat the other named beneficiaries fairly?
- are they willing to make the effort to settle your estate?
- are they well organised and good with finances?
An executor could be:
- a family member
- a trusted friend
- your husband, wife or partner
- a professional executor, such as a licensed trust company or a lawyer
It is common practice to appoint a backup executor in your will, in the case where your named party is not able or willing to carry out their duty.
Once you’ve chosen the executor you’d like to name in your will, be sure to inform them of the location where you’re storing the will, so they can locate it if and when required.
What does an executor of a will do?
An executor of a will handles tasks such as tracking down assets, paying creditors, and making sure beneficiaries named in the will receive property which they are entitled to. If it is a family member, they may choose to enlist the help of a lawyer to navigate the probate process.
Here are some of the other tasks that an executor is expected carry out:
Make funeral arrangements
Apply to court for a of grant probate (a court order to allow the executor to start the process of disposing of the estate)
Locating all the relevant assets
Paying debts and taxes on the estate
Maintaining property until the estate is settled
Represent the estate in court
Distributing assets according to the will
Executors must keep accurate records of all transactions in relation to the estate, as they can be held personally responsible if they make a mistake that diminishes the estate.
An executor is considered to be a fiduciary, this is someone who is trusted to hold high ethical standards and act in the best interest of the estate.
What power does an executor of a will have?
The principle power of an executor is the right to manage and distribute your estate. An executor must be named in your will or be appointed by a court.
The power of an executor comes into effect once you have died, only then is the executor responsible for managing and distributing your estate.
To cut a long story short, choosing a capable person is a valuable decision. They are responsible for duties such as tracking down assets mentioned in the will, paying debts, and making sure named beneficiaries receive what has been left to them.
It is important that you trust the party who you nominate for this duty.
You need to carefully consider the conflicts that will arise when weighing the options as to who will execute your will.
If in doubt, seek professional help from someone who has experience dealing with estates.
Frequently Asked Questions
Do executors get paid?
No, executors do not get paid unless it is stated in the will or where a professional service such as a law firm has been hired to help manage the estate, this would be covered as an expense.
Executors can however be named beneficiaries to the estate.
Do executors need to hire a lawyer?
Unless explicitly mentioned in the will, it is up to the executor of the will to determine whether this, as necessary. Funds from the estate can pay for a lawyer, as this would be considered an expense to administer the estate.
Can you opt out of being an executor of a will?
The executor who you have named in your will can decline the responsibility if they are not able to carry out the necessary duties. This is why it’s important to nominate an alternate executor who can take over their duties.
If none of those you’ve nominated are able to carry out executing your will, someone in your next of kin can nominate themselves (with written permission from other family members) to the Court to act as the executor.