Tips for choosing an Executor

The role of an executor is a crucial one to consider when putting your estate plan in place. In appointing someone as the executor of your Will you are giving them the keys to all that you own and control. That’s big. You therefore need to appoint someone you trust implicitly to undertake this role. You need to appoint your trusted ally. To ensure that you appoint the right executor, let’s take a look at the most common mistakes people make in choosing their executor.

Let your executor know

The role as an executor can be cumbersome and demanding one, so it is important to chat with your executor regarding your intention to appoint them as your executor of your Will and ask if they would be willing to accept the role. Failing to have this discussion with your executor could result in them refusing to undertake the role of executor upon your death, which may result in someone who you would not have chosen administering your estate. By having an informed chat with your executor, it provides you with an opportunity to convey any specific wishes you may have and as well as providing them with an overview of your affairs. You can advise them where important documents are kept, discuss your asset structure and important information pertaining to your business operations. The more information that you can communicate to your executor the better equipped they will be to perform the role as your executor.

Playing the fairness Game

Appointing a particular person as your executor for the compelling reason that you think it is the “fair and right thing to do” can often be detrimental. Appointing your eldest child as your executor solely because he is the eldest, and despite him being terrible with time management, organisational skills and financial literacy would be a very catastrophic choice of executor. The role of an executor is a responsible one, in which the executor owes a strong fiduciary duty to the beneficiaries. Accordingly, it is paramount that you appoint the best person to the role, the person who you trust, the person who has integrity and honesty, a person who is receptive to obtaining the appropriate financial, legal and accounting advice and who fully comprehends the importance and significance of the role of an executor.

Location is important

In appointing your executor, it is important to consider where they are located. During my career I have seen wills where elderly executors have been appointed who permanently reside overseas and who are unfamiliar with the Australian jurisdiction and the probate and estate administration requirements. Often, they are also reluctant to travel to Australia to attend to the probate and estate administration obligations pertaining to their role as the executor of a will, which can create complications. The role of an executor often requires them to be present to sign documents and to oversee the distribution of assets, particularly where the estate is a complex estate. Consequently, when determining who the best person to be your executor you need to consider where your executor is located.

The wrong joint executors

Often people choose to appoint multiple executors but are remiss in not giving consideration to the relationship between the appointed executors and whether they could work well together as executors. If you appoint your three children as your executors and two of them do not get along, it’s likely to be a tedious experience for all executors. If your children don’t get along whilst you are alive, it is highly likely that they won’t get along when you are no longer here, particularly if you were the glue that held them together. In such instance, it would be impractical to appoint all children to the role as your executor. Alternatively, you may be giving consideration to appointing a friend and family member who have never met each other previously, to be your joint executor. Your decision may be based on the assumption that you believe they both bring specific strengths and attributes to the role of executor. In such instance it would be beneficial for your proposed executors to meet. Arranging a gathering to introduce them to each other as well as discuss your expectations would be extremely beneficial to all parties. If you are contemplating appointing joint executors, I would encourage you to give  consideration to the following:

·         Do they know each other?

·         Will they work well together as joint executor?

·         Is there any conflict between them?

·         Will they implement your wishes and act in the best interests of the beneficiaries?

Essentially, when appointing an executor, the person you appoint is the person you trust the most, who you feel has the attributes and capacity to undertake this role in the best interest of you and your beneficiaries.