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How does Will Wizard help Executors?
Will Wizard's ® comprehensive 'Testamentary Trust' Wills are essentially a detailed plan that provides executors with options to help them transfer wealth to your loved ones in the most protected and tax-effective way possible.
To complement this plan, the Will Wizard® portfolio also includes a document titled Guide for Executors which assists executors to understand their role and responsibilities. Furthermore, every Will Wizard® portfolio comes with a clause by clause, plain-language summary of the Wills to aide in this understanding.
While we also encourage executors, Will owners and beneficiaries to seek professional legal advice, these key documents provide further understanding and increase their ability to make informed and sensible decisions.
Standard 2-5 page Wills provide no such planning and far too often leave a complicated mess for executors to decipher and manage.
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What is an executor?
An executor is a person who has been appointed in a Will to manage the Will owner’s estate and carry out the Will owner’s wishes after she or he has died.
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What is the role of the executor?
Being an executor is a position of great trust. An executor has a legal and moral obligation to fulfil the role with high standards of care and honesty. The executor is answerable to the wishes of the deceased as expressed in the Will. An executor is responsible for the assets and liabilities of the estate. An executor is a trustee and must conform to the special legal standards imposed on trustees.
An executor must:
- Follow the terms of the Will.
- Look after the assets carefully.
- Keep all necessary records and accounts and keep the beneficiaries fully informed.
- Consult with any other executor about any decisions which need to be made.
- Get proper expert advice if there is any doubt as to what is the best course of action.
- Not make a profit from the position of executor.
- Avoid situations of conflict of interest (for example an executor may not buy anything from the estate unless the beneficiaries are all adults and they all consent).
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Who is in charge of the estate?
Executors are accountable to the beneficiaries but it is the executors who are in charge of the estate, not the beneficiaries.
Executors must work according to the direction in the Will, not the direction of the beneficiaries. The executor is answerable to the Court. Beneficiaries can have the Court order an executor to deal with the estate promptly and diligently and correct any wrongful distributions by an executor. Generally, executors are not required to get consents from the beneficiaries. If the executors wish to act contrary to the directions in the Will, they will need consent from the beneficiaries. Only adults can give such consent.
To avoid surprises confusion or misunderstandings, executors may choose to get feedback or consents from beneficiaries even where they are not required to do so.
For instance, the executors must act prudently to get a fair market price on the sale of estate assets. They are not usually required to get consent from the beneficiaries to a sale price but may choose to do so out of respect for the beneficiaries or to avoid an accusation the executors failed to act prudently to get a fair market price.
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Can an executor refuse responsibility?
An executor may refuse to take on the responsibility of acting for the estate. However, after the executor has taken action, the executor may need Court approval to be released from the responsibility of being the executor.
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Who pays the executor?
The executor is entitled to have expenses they incur in the conduct of the estate paid from the assets of the estate, but is not entitled to charge a fee or commission unless the Court, the beneficiaries or the Will so approves.
Typically, executors are trusted friends or family members who perform their work without a claim for a fee or commission, out of respect for the deceased.
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Who arranges the funeral?
The executor is responsible for making the funeral arrangements. Executors may take guidance from any directions left by the deceased or any consensus within the family, but such wishes are not legally binding.
The executor has the legal right and duty to make these decisions. Most funerals are organised through a funeral director who can advise on all the practical arrangements for the funeral and burial or cremation.
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Should there be a reading of the Will?
It is not necessary or typical to have a formal reading of the Will. More usually, copies of the Will are sent to residual beneficiaries.
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Who gets copies of the Will?
The executor takes custody of the Will. Only a residuary beneficiary is entitled to a copy of the Will from the executor. However, it is sometimes prudent to give all the beneficiaries copies of the Will and tell them what is happening.
The executor can be sued if the executor does not act in the beneficiaries’ best interests.
A residuary beneficiary is a person who receives any property by a Will that is not specifically left to another designated beneficiary. For example, if Carl makes a Will leaving his boat to James and the remainder of his property to Anne, then Anne is the residuary beneficiary.
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Can an executor ignore Will instructions?
No, the executor must follow the terms of the Will.
Will Wizard® provide the Executor with maximum flexibility to distribute the estate so that the distribution is in the best interests of the beneficiary given the beneficiary’s current personal and asset circumstances.
However in some case, to change the manner in which the assets are to be distributed, court action may be required. If all the beneficiaries agree, the terms of the Will can be altered by means of a Deed of Family Arrangement (sometimes called a Deed of Variation). It is important to always seek expert legal advice.
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Can executors get paid?
Sometimes in the Will the Will owner may set out how much an executor is to be paid. The executor is not entitled to a commission unless all the beneficiaries agree or an application is made to the Supreme Court. The executor may recover from the estate any reasonable out of pocket expenses incurred whilst administering the estate.
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What happens if my executor dies?
Will Wizard® is all about planning for the worst. This is why we always have a back-up plan in place. When nominating your executor, we always make sure you also nominate a second choice executor in case your first choice executor dies, or is unable or unwilling to accept the responsibility.
