While a lot of people don’t see the importance of a Will; especially younger people, having an up to date Will is extremely important, because as the old saying goes ‘accidents do happen’. It may sound a bit morbid, but unfortunately you never know what’s around the corner; you may be in an accident, or struck by a serious medical condition and the last thing you want is for your family not to be taken care of.
But who controls your Estate and is responsible for making sure your wishes are carried out after you die?
This role is usually taken on by someone you know and trust. In most cases is a trusted family member. When constructing a will you nominate this person as your ‘Executor’.
An Executor has several duties to carry out, including:
- Arranging your funeral;
- Identifying all of the beneficiaries of your Estate;
- Applying to the court for a grant of probate, if this becomes necessary;
- Collecting the assets of your Estate;
- Paying any debts;
- Arranging for tax returns to be prepared and lodged;
- Distributing your estate in accordance with the instructions included in your will;
- Defending any legal proceedings brought against the Estate, or bringing these where required; and
Managing the inheritance of any beneficiaries who are under 18, if they are appointed to do so by your will.
As you can see the role of your Executor is an extremely important one, which makes it crucial that you select the right person or people. You can appoint up to four people to act jointly as your Executor, and any person can be an Executor as long as they are over the age of 18.
It’s a good idea to discuss your choice with the person you would like to act as your Executor before you have a Will prepared to ensure they are willing to take on the role and understand that it can be time consuming and demanding at times.
If you prefer you can also appoint a professional person to be the Executor of your estate, such as a lawyer or accountant. This option is useful where your Estate is very complex, or where a likelihood of a dispute arising exists.
Having a valid Will and the right person to act as Executor is important, as where no Will exists, or your selected Executor elects not to act, then other people who have an interest in your Estate may apply to the court for what is termed ‘letters of administration’, which gives them the right to act for your Estate.
Where no other suitable person exists then the court will instead appoint the Public Trusteed of Queensland to act for your Estate.
This could mean your wishes are not carried out as you would have liked.