Our Gold Coast estate lawyers are often asked “who should be the executor of my Will?”. The short answer is that the executor needs to be someone that you trust to put into effect your wishes.
The role of executor is one which involves responsibility and care. It is critical however that the Will maker trusts the proposed executor implicitly in particular if there is only one executor. That is because an executor has strict duties including duties to keep their property separate and not to intermingle their own dealings with those of the estate, however it can be difficult to monitor the executor’s conduct, and any improper dealings may not be noticed until damage has been done. Also, the cost of making application to review the dealings of an executor can be very high.
The simplest form of a Will is made for a couple, with or without children. In the majority of cases for these Wills, each member of the couple will give their estate to the other and make them executor of the Will. There will be provision in the Will that if the other member of the couple passes away at the same time or beforehand, then there will be a substitute executor, and substitute beneficiaries (eg any children of the couple, or relatives, or in some cases, charities).
Outside of couples, executors can be close relatives, friends, or people with whom the Will maker has a professional association, such as lawyers or accountants. What must be borne in mind is that when a professional such as an accountant or a solicitor is appointed to be executor, then they will charge their professional costs for all duties, not just legal or accountancy work. This means that the many minor tasks carried out by executors such as arranging the funeral, disconnecting services and the like will be charged out at the professional’s hourly rate. Some might also claim executor’s commission in addition to their professional fees, although our Gold Coast estate lawyers tend to think that is inappropriate and that the executor should either charge professional fees or take a commission, but not both.
Should then the executor be a family friend? That is an option, but bear in mind that being an executor can be a challenging role and sometimes it involves dealing with disputes and squabbles over property or personal effects. Think about the chance of that happening, and whether the proposed executor will be stressed having to deal with it all. An executor can be rewarded by commission, but in the case of disputes between beneficiaries that commission might not adequately recompense the executor for their time and inconvenience.
So when a client asks us “Who should be the executor of my Will?”, we will tell them that it needs to be a person:
- If there is a person that they trust implicitly, then that person;
- If there is no such person, then two professionals (but not from the same firm) or a professional and a lay person, which at least gives accountability for the professional.
One further issue is that the rules relating to the assessment of costs insofar as they apply to lawyers are ineffective where that lawyer is the executor of an estate as the beneficiaries of the estate have no entitlement to compel the assessment of the costs. Lawyers are required to caution Will makers in relation to their fees for the administration of estates at the time of the making of the Will, however sometimes Will makers do not heed those warnings particularly where they might be tempted by a cheap Will or a convenient service where the lawyer might visit them at home. We would caution people against making a will where the sole executor was a lawyer or other professional, particularly one with whom they had few dealings.
Our Gold Coast estate lawyers have been involved in an estate dispute where the sole executor is the lawyer who visited the Will maker at home and had a Will prepared in which that lawyer was made sole executor. It appears that there are significant overcharges for the executor’s legal costs to the estate and the lawyer has not provided copies of bills or client agreements to justify or explain those charges.
Because of these matters, it is the view of our Gold Coast estate lawyers that where a professional is appointed as executor (or substitute executor), it should only ever be on the basis that there is a second executor, whether that is a relative or another professional from a different firm so that the executors are accountable and there is a means to review their charges.