Q. Who should I appoint as executor?

A. A person or persons over the age of 18 years whom you trust to take charge of your affairs upon your death. The person or persons you appoint should be capable of ensuring that the assets of your estate are properly collected, your debts are paid and the net estate then correctly distributed to the beneficiaries named in your will.

Q. Can I have a number of executors?

A. The Succession Act limits the number of persons who may take out a grant of representation to four. Thus you should not appoint more than four executors in your will. It is common to appoint one or two executors but if they fail to survive to appoint alternative executors.

Q. Should I obtain the approval of the proposed executor to act before I actually appoint that executor?

A. It is not actually necessary to obtain the approval of the proposed executor before appointing that executor. However it is advantageous for a client to ensure that the person they wish to appoint is willing to act. If executor is unwilling to be involved in the administration of the estate, he or she may formally renounce the executorship. This could involve additional delay and costs in the administration of an estate which might be avoided if client investigates the willingness of the proposed executor to act prior to making the appointment. Once the appointment is made it is a matter of courtesy to advise the person or persons who have been appointed that they have been so appointed to act.

Q. Should I give a copy of my will to my executor?

A. It is not necessary to give a copy of your will to the executor and it is unnecessary for the person appointed to have knowledge of the contents of your will.

Q. What are the executor’s duties?

A.

1. To collect the assets of the estate
   
2. To pay the debts of the deceased.
   
3. To distribute the net estate (that is after payment of the debts and the expenses of administration) to those beneficiaries entitled under the will
   
   

Q. When my step-mother died, there was a dispute that arose among her children and her step-children, as to who was to be responsible for arranging the funeral. Can you explain whose responsibility it is to arrange a funeral?

A. It is actually the duty of the executor to carry out the arranging of the funeral. However In most cases close family or friends attend to the funeral arrangement without reference to the executor. Often there may be a delay of several days or weeks after the funeral before the will is located and the executor is identified. Nevertheless, it is most desirable for the will to be located and read as soon as possible after the death. The testator may have expressed specific wishes for funeral arrangements. If a dispute arises regarding the funeral arrangements, it is always the decision of the executor which is paramount. Of course funeral expenses are the first charge against any estate and whoever does arrange the funeral is entitled to reimbursement of the expenses incurred.

Q. Does the executor have a right to commission for handling the estate administration?

A. Commission is not often applied for by the executor where the estate’s affairs are fairly straight forward often the executor may be a family member who may not wish to claim any commission. Where the estate administration involves a lot of work for the executor, then the executor may apply for commission for the “Pains and Troubles” incurred in the estates administration. Application to the court for commission, involves an application for an order that an account be passed in relation to the administration to the estate and for commission to be allowed.

Q. When is it necessary to appoint a trustee under a will and how are the powers of a Trustee exercised?

A. In most wills the testator appoints a person or persons as executor/s and trustee/s. The will may create Trusts which are to be administered by the executor who also acts as a trustee. An example is where the executor is also a trustee for infant beneficiaries or where the executor is exercising powers in his or her capacity as a trustee in the course of administration of the estate. Such powers of a trustee must be exercised in accordance with the Trusts Act 1973. To properly attend to administration of the estate the role of the executor often overlaps with the role of a trustee. It may be necessary for assets to be sold and the proceeds held in trust for a period of time before distribution can take place. In some of the more complex wills the testator may set up a testamentary trust or trusts and appoint different persons or trustee corporations as trustee of such trust or trusts.

Conclusion: There are many questions that arise when one is considering appointing a person or persons to act as executor/s and trustee/s of his or her will. Our firm is happy to assist you in understanding the role of executors and trustees. If you have been appointed as an executor and trustee and need to know more about the tasks expected of you in relation to the administration of an estate, we invite you to seek our professional assistance. Problems can occur during the administration of an estate and/or when a will is challenged and the problems can get out of hand unless you have the guidance of experienced professionals in this area of law.