VIC Executor of a Will - Involved in Finalising Estate?

[AlPal]

Hello. In VICTORIA, AUSTRALIA. Under what circumstances would the executor of a will become involved in the finalisation of my estate? I am a widower with no dependent children (one adult daughter). I am not in a de facto or partner relationship. I own my own home, valued at $350,000+, two small superannuation funds ($20,000+ total) and around $5000 in the bank. These are my only significant assets.

 

[Sophea]

Hi Alpal,

An executor is a person that you appoint in your will to carry out your wishes after you die. If you do not appoint one, then the court will appoint an administrator, usually the major beneficiary, to carry out the terms of the will. If you are leaving everything to your adult daughter then it makes sense that she would be the sole executor and beneficiary of the will. You can also appoint the Public Trustee as executor of the will however they will charge a fee. A table of their fees can be downloaded here;http://www.publictrustee.sa.gov.au/uploads/pdf/FAQ/FeesEstateServicesJuly14.pdf

After you die, your executor will normally attend to paying for your funeral expenses etc. They will then be required to obtain probate on your will - which basically confirms it is your genuine last will and testament. With probate the executor then gains access your accounts and property and attends to the disbursement of the assets. If there is a sole executor/ beneficiary then they would close all your accounts and transfer title to all your funds and property to their own name.

 

[Tim W]

While I defer to my Victorian colleagues for detailed commentary,
allow me to make a couple of points to prompt discussion.
I am a lawyer in NSW, not Victoria, so factor that in
when deciding how much notice to take of what I say here.

1. While you remain alive.
   
   An executor's powers does not enliven* until your death.
   While you remain alive**, those powers are not operative.
   So, while you are alive, they do not have any power to do anything.
   
   It's important not to confuse the powers of executorship
   with those that come from holding Power of Attorney or
   being an Enduring Guardian (or whatever those offices are called in Victoria).
   You have not told us if you have appointed those.
   
   
2. You can choose your own executor.
   
   A testator names their executor in their will. It's the testator's choice.
   It is usual to tell the executor in advance (ie while the testator is still alive).
   
   In cases where there is a valid will, an adult descendant
   (even a "sole beneficiary") does not automatically become your Executor.
   Even if they are the only surviving relative.
   
   Nobody has a right to be an executor.
   
   You are entirely free to choose somebody who is not a relative, by saying so in your will.
   
   (Things can be different in an intestacy - a case where there is no valid will.
   That's why having a professionally drafted will is important,
   and why DIY Will Kits from the newsagent etc should be avoided).
   
   
3. Even a sole beneficiary does not have to be executor.
   
   There can be circumstances where the sole beneficiary may be
   (either at law, or simply in your own opinion) unsuitable to be executor.
   
   For example, if the beneficiary
   • is a bankrupt; or
   • has been convicted of an offence (especially one of dishonesty); or
   • has a developmental or cognitive disability, such that the job may be beyond them; or
   • has a drug/ alcohol problem such that the job may be beyond them; or
   • has a medical condition (including mental health) that might make them unsuitable; or
   • is under a legal disability (eg in prison); or
   • and the testator are estranged; or
   • does not have your general confidence when it comes to doing the job:
     (eg something simple and anecdotal like "...has never been very good with money...", or
     "...could never stand up to <other relative>" or, "...isn't very good at hard decisions" ) etc; or
   • may be, in your view, influenced in their execution by somebody else (eg a spouse or partner).

Sometimes, there can be family law factors in play - such as where a person is not permitted (say, by court order), to contact another.

Sometimes, it can boil down to that you just don't like the idea, for whatever personal reason,
of it being them.
​

There is some really good (Victorian) stuff about wills and executorship here.

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* Lawyer-speak for "come into effect"
** Even if your capacity is impeded at the end of life