The Final Appointment

“If you’ve ever wondered how to get back at someone who’s made your life a pure hell, you might consider making him or her the executor of your will.”

This tongue-in -cheek remark by American business writer Pat Cash is a reminder being an executor is not all beer and skittles although, so far, executors in New Zealand are not sued as regularly as those in the highly litigious United States of America.  In this article we look at what is involved in being the executor of a will and at the factors to consider when appointing your own executor.

An executor named in a will traditionally has five basic tasks to carry out:

• To bury the deceased. (Usually the family arrange this, but in the event of a dispute the executor has the legal power to make the necessary decisions and to take “possession” of the body.)

• To prove the will. (In other words to make sure the necessary application is made to the High Court to have the will formally recognised and the executor’s appointment ratified under the seal of the Court.)

• To collect in the assets and, where necessary, to convert the assets into cash.

• To pay the debts in their proper order. (Funeral expenses are the first charge.)

• To pay the legacies and then distribute the residue to those beneficiaries entitled under the will.

The above points are only the briefest outline of the many duties that fall upon an executor. There are many legal rules and requirements relating to each task. Usually the solicitor acting in the estate will attend to and advise on these matters, however, it is the executor who has to make the decisions and who is ultimately liable under the law, whether to the Court or to disgruntled beneficiaries, if things go wrong.

When you are making a will, whom should you appoint as your executor?  If you have a small estate, have been happily partnered to the same person for many years and are leaving your whole estate to your surviving partner, then it is quite common for your partner to be appointed as both sole executor and sole beneficiary. However, if your estate has more complex property and a number of beneficiaries, then the choice of executor requires more thought. Any executor must be someone whose honesty and personal integrity are beyond question. Some knowledge of your family circumstances would usually be helpful. Hands-on experience in business and finance may also be essential, particularly if your estate is likely to have a business to dispose of, or investments to manage.

Where an estate is likely to be large or difficult, or you are anticipating family disharmony after your death, then it would be a good idea to appoint more than one executor, including one with professional skills and experience such as a solicitor or an accountant. If you are establishing trusts in your will, intended to run for a number of years, or if the estate administration is going to be particularly complicated, appointing a professional trustee company as executor is also an option worth considering.

How should you respond if your best friend asks you to be the executor of his will? It is a flattering vote of confidence in you and you may have been a family friend for many years. However, care should always be exercised before accepting appointment. Think about the testator’s family and domestic background. Also find out what the testator is going to put in their will. If you think there are likely to be family disputes and complications when your friend dies, then it is almost certainly good sense to politely decline the honour. Executors can come under considerable pressure from beneficiaries and claimants and to do the job properly must be able to withstand such pressure and when the circumstances require it, say no.

If you agree to be an executor make sure you check occasionally to see your friend updates his will.  You will not want to find out you are still the named executor when you are eighty years of age and have not seen your friend for twenty years. If your circumstances change, do not hesitate to ask your friend to find another executor to replace you.

In a simple estate you may become the friendly executor whose sympathetic presence and help is gratefully received and appreciated by a grieving and stressed family. However, if the family is fighting or someone challenges the will, you might end up being the unfortunate person who is caught in the middle and being attacked from all sides. Executorship is always an appointment to be approached with caution.

Disclaimer: The information contained in this article is of a general and summarised nature only.  It should not be used as a substitute for obtaining personal legal advice.

© Terry Carson 2009