Writing a Will is the best thing you can do to ensure your family and friends are looked after once you’ve passed away. This process can be involved, and it’s often better left to professional Wills and estates lawyer Brisbane wide. A little bit of professional help means you’ll be able to write a comprehensive Will that takes the burden off your family at a difficult time.
One of the most important parts of your Will is nominating people as your executors and beneficiaries. Executors and beneficiaries play very different roles in the estate planning process. If you nominate the right people then you’ll be able to rest easy knowing your final wishes will be carried out and that your loved ones are looked after. Since executors and beneficiaries are often made up of your closest family and friends, it’s common to see some overlap between the two groups. In this article we’ll look at the legalities of naming one of your beneficiaries as the executor of your Will.
Beneficiaries and Executors
Your Will is a document that details your last wishes and lets you provide instructions on how you want your assets to be distributed after you pass away. You won’t be able to oversee the distribution process yourself, so you’ll need to nominate someone to be the Executor of your Will. The executor plays an important role in making sure your debts are settled and that your assets are distributed to the beneficiaries.
- Beneficiaries – These are the individuals or parties who will inherit assets from your estate. You can nominate one or more people to be your beneficiaries. It’s also common for people to nominate companies (like charities) as beneficiaries. If you don’t nominate any beneficiaries, the Public Trustee will perform their own investigations and determine how to distribute your assets. This is one of the reasons it’s so important to keep your Will updated throughout your life.
- Executors – The executors are the individuals who will administer your estate after you pass away. Your executors will gather all your assets, settle any valid debts and then distribute your assets to the beneficiaries according to your wishes. You can nominate one or more people to be the executors of your Will. It’s also common to nominate an independent third party (such as a wills and estates lawyer) to act as your executor.
Can an Executor of a Will Be a Beneficiary?
The short answer is that yes, the executors of your Will can also be beneficiaries. In many cases, the people named as your executors and beneficiaries are your close family and friends. That means there’s overlap between the two groups. It’s both legal and common for an executor to be a beneficiary. For instance, you could nominate your spouse to be both an executor and beneficiary. Similarly, parents often nominate their adult children to both roles.
While it simplifies the process of creating your Will, making the executor a beneficiary can create a conflict of interest. Executors are required to act honestly and in good faith, but issues can still arise from mixing the two roles.
Who is Eligible to Be an Executor?
You have the final say in nominating the executors of your Will. In Australia, the only requirements are that the person must be over 18 and of sound mind. The catch is that acting as an executor can be difficult and very time-consuming. With that in mind, you need to make sure you’re nominating someone who is capable of performing the role.
Many people choose to nominate their spouse or children as the executor of their Will. This can mean that someone you know and trust is managing your estate. While that sounds like a good idea, it also means they can find themselves with lots of work to do at a time when they are mourning. For that reason it’s also common to nominate a lawyer to act as your executor. A professional wills and estates lawyer Brisbane wide can bring their expertise to managing your estate and lighten the burden on your family.
While you can nominate any eligible person as your executor, they’re also entitled to refuse the role. If an executor declines or if you don’t name an executor, the duty will pass to the Public Trustee to administer your estate for a fee.
The Role and Responsibilities of an Executor
The executors of your Will are in charge of managing your estate and ensuring your assets are distributed according to your wishes. The role of an executor can be challenging, even for people who’ve been executors before. Your executors will have many duties, including:
- Locating your Will
- Applying to the Supreme Court for a grant of probate
- Notifying beneficiaries of the Will’s contents
- Collecting, managing, protecting and transferring assets
- Recording all actions related to administering the Will
- Paying eligible creditors
- Distributing your assets to beneficiaries
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