The Role of an Executor of a Will

22 Aug 2022
Author: DTI Lawyers

When you have DTI Lawyers prepare your Will for you, you need to decide who the executor of your Will is. Your executor is the person or persons that are responsible for carrying out the intentions of your Will. Even if your Will is straightforward, being an executor of a Will is a complicated and time-consuming role. Whether you have been asked to be an executor yourself, or you are nominating one for your own Will, there are many aspects to consider.

Choosing the Executor/s

Your executor/s must be over the age of 18. They must also have the mental capacity to carry out the role of an executor. It is common that your executor is your spouse, parent, sibling, or a close friend.

It is encouraged that you choose a backup executor, as an executor does not have to accept the role. Therefore, the role will fall to the successor executor.

Your executor should be someone who is good with legal and financial processes. It is important that they are also a good communicator as they will be in contact with various people including beneficiaries, lawyers, and other third parties such as real estate agents. Your executor should be someone who is responsible and impartial to the distribution of your estate to the beneficiaries.

It is encouraged that when your Will is prepared that you advise your executor that they are in fact an executor under your Will. This avoids a surprise for them after your death. It also allows you to give them the necessary information for the administration of your estate.

The Role of the Executor/s

The duties of executors include:

  • Arranging the funeral (if this has not already been done);
  • Preserving the assets and, as appropriate, selling and disposing of property in the course of administration of the estate;
  • Closing bank accounts and paying debts and testamentary expenses of the estate;
  • Keeping accounts and records of all dealings involving the assets of the estate;
  • Distributing the assets of the estate according to the terms of the Will or rules of intestacy;
  • The estate lawyer advising your executor will be able to help in these matters. The costs involved in your estate administration will come out of the estate; and
  • Carrying out the role as an executor is a role that is not paid for, unless the Will makes special provision for this. 

The Trusts Act 2019 – Trustee Duties

As an executor of a Will, once the assets have been called into the estate you also become a trustee. The Trusts Act 2019 (the Act) provides mandatory duties that the trustees must adhere to. These duties include the duty to:

  • Know the terms of the trust (Will);
  • Act in accordance with those trust terms;
  • Act honestly and in good faith;
  • Act for the benefit of the trust beneficiaries or the trust’s purpose; and
  • Exercise their powers for a proper purpose.

The Act also provides for default duties that the trustees must adhere to. However, DTI Lawyers can modify these duties so that the trustees’ duties and the intentions of the will-maker align and do not conflict.

Can an Executor also be a Beneficiary?

A default duty under the Act includes the duty to not self-benefit. This duty can be modified so that your executor/trustee of your Will can also be a beneficiary under the Will. Therefore, you have the ability to make your partner your executor, as well as a beneficiary to receive your estate under your Will. However, it is important that where your executor is a beneficiary under your Will, that they are impartial towards the other beneficiaries. 

How DTI Lawyers can help!

Wills are very important documents. At DTI Lawyers we will take the intentions that you have for your estate and formalise them into a valid Will. To make a start, you can contact our specialist team at DTI Lawyers by phone on 07 282 0174 or email us directly.