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Choosing the Right Executor: How to Make the Best Decision for Your Estate

The process of Estate Planning can feel like we are being asked to make a lot of little decisions, which we are often given little guidance with and which if we choose incorrectly can lead to dire consequences for your estate. It’s no wonder then that faced with this, many people will put off any decision making whatsoever or will rush through the decision and consequently may not feel confident in their estate planning.

In this article we explore the question of choosing the right executor of your estate and go through some of our suggested criteria to consider before appointing anyone into the position.

Basic Legal Requirements

Your Executor needs to be someone who is over 18 ( at the time they are required to act) and who has the mental capacity to act. These are the basic requirements under the law.

You can nominate more than one Executor to act at any one time and you can appoint substitute executors to act if any of your instituted (or first choice) executors are unable to act.

Every situation is different but generally speaking there really isn’t too much that the law imposes to restrict your choice of Executor and given that everyone’s estate is unique this is probably a good thing.  This does mean however that we all need to come up with our own criteria for assessing potential candidates.

Our Recommended Criteria For Choosing The Right Executor

Based on our experience we can recommend the following as a good starting point:

Choose someone who knows you

This extends from the basics of knowing what your assets are and where your legal documents are actually located to who you bank with, who you may owe money to and especially who may owe money to you.

Your Executor's job is to carry out your wishes as expressed in your Will and to administer the estate. This can include contacting your banks, transferring your property, paying any outstanding debts, selling or dividing assets amongst your beneficiaries. An ideal starting position would therefore be someone who knows who these asset holders are and which assets you are referring to in your Will. If you are wishing to bequeath your grandmother's antique ruby bracelet, it is essential that your Executor can actually locate this bracelet from amongst your possessions. For this reason you may also wish to appoint your Executor from amongst the people that are likely to actually be sorting through you personal items after you pass away.

Where it is possible, your Executor must follow your instructions as contained in your Will, however to an extent your Executor also has the final say over your estate and can have great powers over the decisions made in administering your estate. For this reason we would recommend that you pick someone who you believe knows your wishes and will follow your instructions.

Someone who knows and gets along with your beneficiaries

It is important to remember that being an Executor is a job and one of the key responsibilities of this job is dealing with the concerns of beneficiaries. An Executor needs to act impartially and fairly in dealing with what may be competing interests of your beneficiaries. They also need to be able to act in their best interests.

The ability to keep beneficiaries and family informed is also a key one as the administration of an estate is not a quick and simple process and even for the most basic and simple of estates can take around 12 months to fully administer. During this time your beneficiaries are likely to have a number of questions or concerns and if your Executor has the skills in order to properly communicate with them, this can potentially minimise a lot of the distress that your loved ones are likely to be feeling during this time.

If there is a minor beneficiary, or a life interest, your Executor may also be appointed as trustee and may need to act in this position for a number of years. The ability to get along with, or at the very least command the respect of your beneficiaries is therefore extremely vital for the peace of your family and beneficiaries and for the best administration of your estate.

For example, let's say you have an estate where a beneficiary is still a minor at the time of your passing and you have appointed your Executor to also act as a Trustee, you may wish that your Executor not distribute to that beneficiary until they turn 18, if that child is still only 8 at the time of your passing, this means 10 years where your Executor needs to be in contact with your beneficiary, be accountable to them and to act in their best interests to invest or otherwise deal with their entitlement from your estate. This is no small responsibility.

Another consideration here is that your Executor needs to be able to identify your beneficiaries. They need to know, or at least be able to find out, who you have identified as your beneficiaries e.g. who is your " beloved neighbour who was of great assistance to you in your time of need", who are "your grandchildren", which is your " family church which you have attended for many years."

All of these are considerations that may help guide you in your choice when appointing an Executor.

Someone with the right temperament

As a bare minimum your Executor needs to be someone who is organised, ethical and preferably financially minded.

As we've said before, being an Executor is a job and it is a job that can last for many years. It involves dealing with beneficiaries, dealing with the courts, dealing with asset holders, dealing with the ATO, it involves the preparation of accounts , keeping within certain timetables and it can involve investing and making decisions as to the leasing, sale or retention of property.

Obviously your Executor will likely be engaging professionals to assist such as solicitors and accountants, however they need to firstly have the capability to recognise when this assistance is necessary and who to best consult, which can be a skill in itself.

Another consideration is that you need to ensure that your Executor has the time to act. Being an Executor can be very demanding on a person's time, even if they engage a solicitor to assist, there are forms and affidavits to sign, there are beneficiaries to keep informed, there may be a house full of items to go through, there are important decisions to be made, your estate may even be contested or may need to answer to the court in some other way which is another significant responsibility that your Executor will need to navigate.

On the topic of a potential claim to your estate it also important that your Executor is patient and level headed and is capable of calm and reasoned compromise and decision in the best interests of your estate. Your Executor needs to be able to assess advice and to assess the value of any proposed offers of settlement at a time when interests are likely to be heightened and relationships may be strained.

Ensuring that your Executor has the right skills and temperament can go a long way towards ensuring that the administration of your estate goes smoothly and your beneficiaries are in receipt of the full value of their inheritance after you are gone.

What if you can't find anyone appropriate ?

Having gone through these considerations, what if you can't find anyone that is appropriate. One possible solution could be to appoint more than one person in the position, although it is probably a good idea to only appoint those who can work together and who can get along for a prolonged period of time.

Another option to appoint a professional in the position, such as a solicitor, an accountant or a Trustee company. Although the payment of fees and commission should be a consideration if you are considering this approach.

Or you could consider a combination of these solutions.

It is important to remember that your estate is unique and as such it is almost impossible to make an overarching recommendation without a full and proper examination of your estate and your wishes for the future.

Whilst we have seemingly returned to our starting point, where Estate Planning is feels like a lot of little decisions, which if we choose incorrectly can lead to dire consequences for your estate, there is no need to lose heart.

At Inele Law you can book a call to speak with our principal solicitor about your estate planning. We can review your existing documents to ensure that your choice of Executor is appropriate for you and we can prepare any new documents in accordance with your wishes and instructions.

Even more importantly the first step is free and easy, simply click below to book a discovery call with our principal solicitor. During the call, we will listen to your concerns, ask questions to better understand your situation, and provide initial insights and recommendations.

Estate planning is necessary in order to ensure your legacy. Contact us today to find out how we can be of assistance.

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