What Do You Need to Consider When Appointing an Executor in Your Will?

The decision as to who you choose to be responsible for dealing with your estate is an important part of the process of making your Will. The person chosen (though you can have more than one) is known as the executor. It is a crucial role and one that carries a degree of risk as well as responsibility.

An executor is responsible for making sure that any debts due by the deceased are satisfied and that the remainder (or residue) of the estate is distributed following the wishes expressed in the Will.

Many people will choose a family member such as a spouse, de facto partner or sibling. Some may opt for a friend, and some will consider a professional, such as their solicitor, to act for them.

The role can be onerous, especially if there are disgruntled beneficiaries or persons who consider they have an entitlement but have been omitted from the Will.

Practical considerations when appointing an executor

The factors you may want to consider when deciding who to appoint as your executor include:

Willingness

The proposed appointment should be discussed with the individual, if possible, in advance of them being named to be sure they know what is involved and agree to take on the duties involved.

Capability

Is this person/people mentally and physically able to take on the role? Do they have the right attitude and administrative and financial competence? An important quality is being prepared to take responsibility. They should be preferably of good standing with suitable personal finances of their own. Are they the right age given it may be decades before they are called upon?

Availability

Depending on its size and complexity, administering an estate can take a considerable amount of time. Hence, the appointee must be readily available to deal with any matters that may arise.

Quantity

Many people choose to appoint just one executor in the belief that this will make the administration of the estate easier. This may be the case but not always, and it is worth considering whether there should be more than one shouldn’t something befall a sole executor. They could pass away, or become incapacitated, without having dealt with the estate. It is prudent to at least consider appointing two or more executors, especially if you have a large or complex estate. If so, they will need to be able to cooperate with each other. It is also possible to name one executor while also naming a substitute should the primary executor be unable to fulfil their duties.

Continuity

If a friend or family member is appointed as executor, there is no certainty that they will be willing to act when it comes to the crux. If this proves to be the case, the Court will take over in deciding who will be your representative. This might be someone whom you would not have appointed. Appointing a professional to act on your behalf will ensure that there is always someone suitable to accept the role when the time comes.

When considering who to appoint as a professional executor, it is important to consider their experience and specialism in such matters.

Find out more in our article Benefits of Using a Solicitor to Help Deal with an Estate?

What could possibly go wrong?

Hopefully nothing will go wrong, but it is good to be aware of what might happen. The recent case outlined below illustrates how matters can get out of hand where two executors, in this case, brothers, do not like each other and cannot work together.

Case example

In Callaway v Callaway: The Estate of Aileen Margaret Callaway (2019) a mother appointed her three sons as executors. After she died, one of her sons also passed away. Unfortunately, the two remaining sons fell out, and after seven years the estate still had not been administered.

One of the sons sought a grant of probate on the basis that his brother be “passed over” as executor, or alternatively the appointment of someone independent. His brother reciprocated. The first son then abandoned his claim to be appointed and sought the appointment of an independent administrator.

The NSW Supreme Court made it clear that passing over an executor is not something to be done lightly, and the deceased’s choice of executor should be honoured wherever possible. However, it became apparent during the course of the hearing that each brother distrusted the other to such an extent that appointing just one brother would probably “produce a round of subterranean warfare against the appointed executor and is inherently incompatible with the orderly future administration of the estate”. Moreover, the appointment of either party would produce substantially increased costs to the estate. Orders were made for the passing over of both brothers, and an independent solicitor was appointed instead to administer the estate. Each party was ordered to bear their own costs of proceedings rather than the estate.

The case demonstrates the difficulty of dealing with two executors with a strained relationship. It highlights the primary concern of the Court, which is to ensure that the estate is efficiently and properly administered in accord with the terms of the Will.  To achieve this, the Court may reluctantly decide to pass over a named executor if the objective is in jeopardy.

It is important to try to ensure it does not happen to you and that your wishes are followed as you wanted.

Contact our Wills and Estates Lawyers in Sydney, NSW

At Szabo & Associates Solicitors, our experts deal with Wills and estates daily. We can advise on any aspect of preparing a Will, including the appointment of executors, act as executors, or advise an executor in the administration of an estate. Please contact us on 02 9281 5088, or complete the online contact form.