Read this before agreeing to being a Will Executor

Being a Will Executor can be an honour, but it's also a big responsibility. This article covers basic information only and doesn't encompass all the tasks of being a Will Executor, so before you agree to being a Will Executor, ask the person who wants to nominate you whether they have sought professional guidance from a solicitor with experience in handling deceased estates about the contents of their Will. Even if they have, I strongly recommend that you seek general professional guidance before you agree to be a Will Executor for anyone because, depending on the complexity of an estate (things owned and owed by the deceased), and if the Will is contested, your role as Will Executor can be quite complex, stressful and take years to complete. Believe me, money spent on seeking advice at this stage will be a worthwhile investment and could potentially save inheritors and Executors much time, angst and money later on.

What is a Will Executor in Australia?

A Will Executor is the person who has been nominated in a Will by a Testator (the person writing the Will) to be responsible for administering  their estate when they die. In simple terms, as a Will Executor you will be responsible for making sure all assets are accounted for, all debts are paid and all beneficiaries receive their inheritance as outlined in the Will.

Who can be a Will Executor?

A Will Executor must be at least 18 years of age at the time they are appointed. They must also be of sound mind and not in prison. A Will Executor can be a beneficiary of the Will. In fact, adult children who are the principal or sole beneficiary are often nominated as Will Executors for their parents' estates, and spouses nominate each other.

When there is more than one beneficiary however, tensions might arise about how a Will Executor is administering the estate, so encourage the Testator to appoint an independent person such as a solicitor or accountant to help you (they will be paid from the estate).

What does a Will Executor do?

There are several tasks that you as a Will Executor will have to do, but these are the basics:

• advise beneficiaries of the contents of the Will;

• apply for a death certificate from the Department of Births, Deaths and Marriages in your state/territory (many funeral directors include this as part of their service);

• depending on the size of the estate, apply for a Grant of Probate from the Supreme Court, which grants you the legal authority to administer the estate;

• notify banks, financial institutions, superannuation funds and government agencies to ensure debts are paid and any income (such as Centrelink payments) stops;

• pay off any outstanding debts and liabilities from estate funds;

• collect, secure and protect all assets, and if necessary, get insurance to protect them during probate;

• get valuations of certain assets;

• lodge a final tax return and pay any tax owing, or receive any tax benefit into the estate;

• close bank accounts and sell or transfer property;

• oversee the payment of any insurances into the estate;

• keep clear records and provide regular updates to beneficiaries about significant decisions and the progress of the estate administration; 

• defend the estate against any legal action and resolve any disputes between beneficiaries, and

• you may need to administer a trust,  especially if there are minor children involved.

How long will it take me to administer the estate?

That depends on the size of the estate, the number of beneficiaries and whether they are in Australia or overseas; the complexity of the estate (lots of real estate, a business or company to wind up etc.), or whether the Will is contested. You might wrap it up in six months if the estate is small and straightforward, but I've seen an estate take seven years to process. Most lawyers agree that it takes around 12 months on average if there are no complications.

Will I get paid to be a Will Executor?

A professional acting as a Will Executor (such as a lawyer) will typically be paid a fixed fee or a percentage of the estate. As a Will  Executor, you are entitled to be remunerated for your time and effort, as well as recovering any expenses that you cover. All beneficiaries can agree to have these costs refunded from the estate, or you can apply to the Supreme Court for appropriate compensation if the estate hasn't made any provision for it if the Testator hasn't allocated money for this in the Will.

The effort of being a Will Executor

As you can see, the role of Will Executor even in its most basic form requires a lot of time and effort, especially if you have no professional support, and I believe there are times when it simply isn't in your best interests to agree to be a Will Executor.

When should I not agree to be a Will Executor?

I would suggest that you gracefully decline the role of Will Executor in the following cases:

1.      You are the same age or older than the person asking you (solicitors always ask for a younger alternative or backup for obvious reasons).

2.      You are not in tip top health.

3.      You are visually impaired or have difficulty hearing (especially on the phone).

4.      You aren't great with numbers, jargon, record-keeping, talking to agencies etc.

5.      You don't have access to a computer and wi-fi, or you aren't tech-savvy.

6.      If you know there are family dynamics that could likely lead to challenges to the Will or fights among family.

7.      You are one of a number of beneficiaries of the estate (the others might challenge how you do things).

8.      If the person asking you to be a Will Executor hasn't given you the basic information you will need to know to do the role properly - especially the location of the Will, or if they haven't let others know they've chosen you and explained the reasons why they want to you take the role.

I hope that helps you to understand the basic elements of being a Will Executor. I've created a simple tool to go through with the person asking you to be their Will Executor and other tools that will help them to get the documentation sorted that you will need to do the job properly at www.rest-easy.com.au or email me at info@rest-easy.com.au.

Some useful links about being a Will Executor:

https://www.nsw.gov.au/family-and-relationships/deaths/after-a-death/will-and-deceased-estate/guide-for-executors

https://www.lawsociety.com.au/for-the-public/know-your-rights/being-an-executor#:~:text=When%20someone%20dies%2C%20an%20executor%20is%20the,name%20as%20many%20executors%20as%20they%20like.

https://www.publictrustee.sa.gov.au/wills-executors-trusts/executors