When making a will it is usual to appoint an Executor whose job it is to ensure your wishes are followed. Executors have certain duties when administering your Estate, such as calling in all of your assets, settling certain debts and liabilities, lodging tax returns, liaising with financial institutions and superannuation trustees and distributing your Estate according to your will.
Appointing the right person for the job is important for a variety of reasons. You should consider the following issues when deciding who to name as your Executor:
A question for the ‘ages’
One important factor to consider is the age of your Executor relative to your own age, and their potential longevity in that role. The pool of potential Executors will vary according to your stage of life. Keep in mind that an executor must be over the age of 18 years.
If you are younger and making a will (good on you!), then you might consider appointing a parent or close relative as your Executor. If you are partnered then you might appoint your spouse, if that relationship is stable and likely to be long-term. Appointing a friend could be problematic long-term as friendship groups do tend to change over time.
The ‘middle years’
Most people appoint their spouse as Executor during these years. Most first-time wills are written at this time and usually because people start to get some significant assets in their Estate. Also, this is the age for having children and most parents want to provide for them, should the worst happen. Otherwise, siblings are often appropriate to appoint at this stage. Sometimes one’s parents are past the age where acting as Executor is possible, and taking on the role of Executor could be distressing to the elderly in many circumstances.
If you appointed an Executor in the ‘middle years’ then you probably appointed a contemporary. Consider whether that person, who is likely now also of ‘advancing years’, is still appropriate. Will-makers in later stage of life often appoint adult children or other trusted relatives, younger than themselves. The obvious advantage of this is that you are much less likely to outlive your Executor!
Willing and able
It is important to consider whether the person you propose to appoint as your Executor is both willing, and able, to carry out the task. You should talk to this person about your intentions to appoint them and make sure this is something they are comfortable with. Try also to consider other factors such as whether your proposed Executor has decided to move overseas, or has extreme work commitments. Think about their abilities, too. If you have a large, complicated Estate with many and varied classes of assets and liabilities, appointing your 20-something child as Executor is probably not going to be realistic. The nature and size of your Estate will be an important factor in considering whom you appoint.
Solicitors as Executors
When should you consider appointing your Solicitor as Executor?
There are some circumstances in which you may wish to appoint your solicitor as your executor. For example, you may have a complicated Estate that requires a degree of expertise and considerable time to administer. You may not have a suitable person in you life that you can appoint, or there may be some complicated family dynamics amongst your beneficiaries that make you want to have a ‘neutral’ person managing the distributions.
How do you appoint your Solicitor as Executor?
You can instruct your solicitor that you wish to appoint them as Executor at the time you are giving instructions for your will. You could also change your Executor without having to re-write your will. You might do this in circumstances where the Executor you appointed has passed away or is no longer able to act in the role. Your solicitor can arrange this simply by preparing a codicil that amends your existing will.
Do Solicitors charge fees to administer your Estate?
Yes, most solicitors will charge for professional services to administer a will. The amount to be charged will be included in the will under what is called a ‘charging clause’. The charges relate to work undertaken as Executor that require the exercise of professional skill.
Solicitors, like all Executors, may also be entitled to apply for an ‘Executor’s Commission’ for administering the Estate, which is usually between 2.5% and 5% of the Estate, depending on the nature of the Estate and the type of work undertaken. At Carroll Fairon Solicitors we do not usually apply for the Executor’s Commission for uncomplicated Estates, and charge only the agreed professional fees as specified in the charging clause.
The Australian Solicitor’s Conduct Rules 2012 rule 10 sets out the specific disclosures about charges that a solicitor must make at the time he or she takes your instructions to prepare the will document.
Ready to make a will?
If you are ready to make a will or revise your current will contact us for an appointment with one of our lawyers. Our fees for a standard will start from $495 (including gst).