Most people put a lot of thought into who gets what in their will. Far fewer think hard about who will actually carry out those wishes. That person is your executor. Picking the wrong one can slow everything down and cause friction in a family that is already grieving.
This guide explains what an executor does and who can take on the role. It also covers the questions worth asking before you write a name into your will. The rules are set by each state and territory, so some details will differ depending on where you live.
What an executor actually does
An executor is the person you choose and name in your will to carry out your wishes after you die. Their duties do not start until that point. Until then the role is simply a name on a page. Once it begins, though, it can take months of steady work.
The Legal Services Commission of South Australia lists the kinds of tasks involved in its factsheet on choosing an executor. These include finding the original will and arranging the funeral. The executor also obtains a certified death certificate and may apply to the Supreme Court for probate. Finally, they distribute the assets as the will directs.
There is often more to it than that list suggests. The Public Trustee of Queensland notes that executors collect the person’s money and belongings. They tell people about the death, including Medicare and the beneficiaries. They also check whether any debts are owed, such as tax.
Who can be an executor
Any adult with legal capacity can be an executor. That might be a relative, a friend or a professional. An executor can also be a beneficiary under the same will. A spouse, an adult child or a sibling can all fill the role.
You can appoint more than one executor to work together. You can also name a backup in case your first choice dies before you or cannot act. Naming a backup is a simple step that saves trouble later. Without one, your estate may end up with nobody ready to take charge.
If no relative or friend is suitable, you can appoint a trustee company or the Public Trustee in your state. These services usually charge a fee, which is paid from the estate. Some people prefer this option for larger or more involved estates. It can also help when family relationships are strained.
Qualities to look for
Trust comes first. Your executor will handle your money, your property and your private papers. Beyond trust, think about whether the person is likely to outlive you. A sibling much older than you may not be the most practical choice.
Time and ability matter too. The role involves legal and financial paperwork, dealing with banks and sometimes managing property for a while. The person should also be able to work through it while grieving. Someone who keeps calm under pressure will usually cope better.
- Someone you trust with money and private matters
- Someone likely to outlive you
- Someone with the time to deal with paperwork and banks
- Someone who can stay fair if family members disagree
Fairness is the quality that gets overlooked. An executor may need to calm disputes about what the will says. If two of your children do not get along, naming one of them alone could add strain. Appointing them jointly or using an independent executor may work better.
How executors fit into your wider estate plan
Choosing an executor is one part of a bigger picture. It sits alongside your will, your powers of attorney and any guardianship wishes for young children. Our article on estate planning for your family looks at how these pieces work together. The executor is the person who turns that plan into action.
Family changes are a good time to review your choice. Separation and divorce often change who you would trust with your affairs. If you are working through issues like spousal maintenance after a divorce, your will may need updating as well. The same applies to arrangements for children, which we cover in our piece on parenting orders during a divorce.
Work matters can come up too. If the person who died was still employed, the executor may need to sort out final pay and leave with the employer. Disputes about entitlements can overlap with the cases employment lawyers deal with. Your executor can get advice on those questions, and reasonable costs are usually paid from the estate.
Talk to the person before you sign
Ask your chosen executor before you sign your will. The role is not compulsory. A person named as executor can say no, and the Public Trustee of Queensland notes that you would then need to choose someone else. It is far better to learn this while you can still make a change.
The conversation does not need to cover every detail of your estate. It should cover where your original will is kept and who your adviser is. A rough sense of what you own and owe also helps. Where you can, tell your family who you have chosen and why, as this can head off disputes later.
Payment, costs and responsibility
Executors can claim reasonable payment from the estate for their time and expenses. A will can also leave the executor a gift. Professional executors usually charge a fee. A family member acting as executor may hire an accountant or lawyer, with those costs paid from the estate.
Executors do not have to pay estate debts from their own pocket if the estate cannot cover them. They do have legal duties, though. A court can act against an executor who neglects the estate or ignores the will. In South Australia, court action against an executor who has failed in their duties must generally start within three years of becoming aware of the failure.
Frequently asked questions
Can a beneficiary also be an executor?
Yes. An executor can also receive gifts under the same will. This is very common within families. A backup executor is still a sensible addition.
How many executors can I appoint?
You can appoint more than one executor to act together. Joint executors need to cooperate on decisions about the estate. If they are unlikely to agree, a single executor may be simpler.
What if my executor does not want the job?
A named executor can decline to act. If that happens after your death, your backup executor can step in. Asking first and naming a backup reduces this risk. Reviewing your will every few years helps too.
Do the rules differ between states?
Yes. Wills, probate and executor duties are governed by state and territory law. Supreme Court procedures and time limits vary across Australia. These laws also change over time, so check the current rules where you live.
This article is general information only and is not legal advice. Laws and processes differ between states and territories and can change. Speak with a qualified lawyer about your own will and estate.