Frequently Asked Questions
An Executor is the person or organisation who is responsible for carrying out the will maker’s wishes as set in the will, after the will maker has passed away.
Your Executor needs to be over 18 years of age and they need to reside in Australia. You should consider appointing a back up Executor in case your first appointed Executor is unable or unwilling to act.
Most people appoint their spouse as their Executor at first instance and their children jointly as their back up Executors.
The role of an Executor can be complex and demanding. In any given case, an Executor may be required to perform the following tasks:
- Arrange the funeral: The Executor is required to organise the funeral and liaise with the Funeral Director to apply for a Death Certificate.
- Notify relevant organisations: The Executor must promptly notify various organisations regarding the deceased person’s death – including:
- Financial institutions (for example, banks and the Australian Taxation Office)
- Service providers (for example, telcos and energy providers)
- Other relevant organisations (for example, Roads and Maritime Services)
- Notify beneficiaries: The Executor must locate the deceased’s last Will and promptly contact the beneficiaries to notify them of their entitlements.
- Look after the estate: The Executor must ensure all assets – including property and investments – are safe and protected. This includes arranging insurance to provide further protection if required.
- Defend claims: The Executor must defend any claims brought against the estate (for example, family provision claims).
- Value the estate: The Executor must identify and determine the value of the estate’s assets and liabilities.
- Obtain authority to administer the estate: The Executor must apply to the Court to receive authority to administer the deceased’s estate. This is known as obtaining a ‘Grant of Probate’ or ‘Probate of the Will’.
- Lodge income tax returns: Before the estate can be distributed, the Executor must ensure all tax returns for the deceased person have been completed and lodged – this often involves completing several tax returns, including a tax return for the estate itself.
- Pay liabilities: The Executor must pay the liabilities and expenses of the estate, e.g. creditors, funeral expenses, income tax, fees for administering the estate and any out-of-pocket expenses. To do this, the Executor may need to sell some of the deceased’s assets, although the beneficiaries may choose to cover these expenses if they do not want the assets to be sold.
- Establish trusts: The Executor is responsible for establishing trusts for beneficiaries if required, e.g. a trust is required if a beneficiary is a minor or is mentally disabled, or if there are specific instructions for a trust to be established in the Will.
- Distribute the estate: Once the liabilities have been paid and the required trusts have been established, the Executor can distribute the remaining assets to the beneficiaries pursuant to the terms of the deceased’s last Will. The Executor usually has 12 months from the date of death to administer and distribute the estate. If this time limit is exceeded, the beneficiaries may have a right to claim interest from the Executor.
Your Will must follow strict requirements to be legally valid. Large costs and delays can result if the validity of a do-it-yourself Will has to be determined by the Court.
Most people know that making a Will is the most important aspect of estate planning – it’s the document that outlines your wishes after you are gone and is the best way to protect your loved ones.
Still, some people feel that spending money on a clear, legally valid, and up-to-date will is unwarranted, perhaps because they are not the ones reaping any benefit from it.
So instead, they choose to lay out their wishes in do-it-yourself will kits or online software that can generate a will quickly, and at a fraction of the price that a qualified will maker would charge.
But buyers beware – do-it-yourself will kits are rarely adequate when it comes to handling complex situations, and anyone making their will without professional assistance risks making a mistake, overlooking something or creating uncertainty about their wishes.
One of the reasons for this is that the way we speak and the words we use in everyday life, when written in a Will, may have a different meaning in a legal context.
There are many rules set out in legislation and in case law about how words and phrases in Wills are interpreted, and how Wills are interpreted as a whole. Where the interpretation of the Will is uncertain, it may have to be determined by the Court, which can result in long delays and expenses.
There are also problems when do-it-yourself Wills are not signed in accordance with the requirements for a valid Will. Questions may arise about whether you intended the document to be your Will (for example, did someone force you to update your Will for their own benefit?)
If a Court decides that a Will is not valid, it would revert to an earlier Will or deem that there is no Will. This could mean your assets will be distributed in a way you didn’t intend, and the people you may not have wanted to benefit from your assets (for example, estranged family members, children who have gambling habits, or a history of substance abuse) would receive large sums of money, while charities or close friends you wanted to recognise would miss out.
While there are many DIY kits on the market offering a variety of instructions, most offer limited guidance, particularly on the following issues:
- what forms part of your estate
- dealing with blended families
- how to handle superannuation
- taxation related to your estate
- determining the powers of the executor
- details about guardians and trustees.
When you make a will with PB Ritz we ensure it meets all the requirements needed to be valid and provide impartial witnesses. We will talk through all of the things you need to consider so that you can make the best decisions for your loved ones.
Your will is one of the most important documents you will ever sign, so it’s wise to have it professionally prepared.
Many people enjoy the companionship of pets and see them as family members, so how can we protect their futures in our wills? Animals who cannot be provided for when their owners can no longer look after them may find themselves in the local animal shelter or being euthanised.
In recent years, pets are becoming an important part of people’s lives and are sometimes looked after like children in the family. We buy them toys, build them playgrounds, dress them in trendy clothes, and buy them gourmet foods. There is even pet tech on the market that can read animal heart rates and assess how they’re feeling. So it’s not surprising that many people decide to write their pets into their Wills to make sure they are looked after, in case they outlive their owners.
However, under NSW law, a pet is still regarded as property belonging to their owner, which means pets cannot hold title to property or inherit money as a beneficiary under a Will. But they can be provided for in a number of ways, such as through a legacy or a trust fund.
If you have a furry, feathered, or scaly member of the family you wish to include in your Will, we can help you make the most appropriate provisions for them when you plan ahead with us.
If you have children under the age of 18 years, you should consider appointing a legal guardian for them in your Will.
In the event that both you and the other parent of your children pass away while they are under the age of 18, the law requires that someone is appointed to look after them. This person is known as a guardian.
A legal guardian who is appointed to look after your children under 18 years will take on responsibilities for longer-term decisions, including:
- values and religion
- health and lifestyle.
It’s important to have discussions with the person who you are asking to take on this responsibility, if the situation occurs.
Topics to discuss include:
- living arrangements (for example, do your children move in with the guardian or does the guardian move into your home, and what happens if guardians are grandparents living in a retirement village, etc)
- access to financial arrangements and support
- setting up a Trust for your children in your Will
You can choose one or more people to care for your children as their guardian, but it requires serious thought and discussions with the person/s you are considering for the role.
If you and the other parent of your children are deceased and there is no guardian appointed for them under a valid Will, then anyone with an appropriate relationship, like a grandparent, aunt, uncle, sibling, step-parent, or family friend can apply for guardianship of your children. In this instance, the Family Court will decide who the guardian will be.