Unfortunately, sooner or later we all have to turn our minds to the prospect of shuffling off this mortal coil. For most of us, when we do the exercise inevitably entails a lot of care and consternation, stipulating just who should get what in the all-important terms of our final will and testament. But in the process what is often overlooked is one of the most vital questions of all – who should be appointed as executor of the estate?
Recent cases of misconduct by executors of deceased estates have highlighted the need to be very cautious when naming an executor in your Will. The role of executor can be a powerful and a challenging one. Generally, the executor of an estate will need to obtain a grant of probate, identify and locate beneficiaries named in the Will, and painstakingly collect and collate all information concerning assets and debts of the estate. In short, the executor’s role is to administer and eventually distribute the estate to the beneficiaries. It is important to carefully consider not only who to nominate as your executor in your own will, but also whether you are willing to be an executor of someone else’s estate. There are risks involved in taking up the role, such as being held accountable for slip-ups in the process of administering the estate. In particular, when dealing with the administration of estate assets, it is vital an executor is conscious of precisely what they can and cannot do.
The executor is in a position of considerable responsibility and control and, sadly, it is not unknown for an executor to have ‘dipped into the well,’ siphoning funds out of an estate for their personal benefit. Not surprisingly, the consequences of such breaches can be most severe, but even those who should know better have occasionally been tempted by the lure of estate funds. Most recently, a lawyer appointed as the executor of his late client’s estate was convicted and suspended from legal practice for misappropriating funds he felt he was entitled to. Point to be noted – you don’t want someone with sticky fingers as your executor.
Of course, not many of us are keen to work for free, so executors can be rewarded for their services, but only under very limited circumstances. They can claim commission for their services from the estate provided they obtain the necessary authorisation from a court, or alternatively obtain approval from all the residuary beneficiaries.
So, who do you appoint to be the executor of your final will and testament? That, of course, is the big, big question. The short answer is, if you plan to rest in peace, it better be someone that you trust implicitly.
Navrinder Sathar, Lawyer, Dispute Resolution & Litigation, Wills & Estates