Guide to Choosing an Executor

Choosing an executor (or executors) is an important part of estate planning.  With help from Matt Hay at Succeed Legal, we’ve put together this guide to help will-makers step through the sorts of things that should be considered.

What does the role of executor include?

Understanding the role of the executor may help you decide who would best suit this role in a particular situation.

In general terms, the role of executor includes:

  • Organising the funeral
  • Applying for grant of probate from the court (depending on the deceased’s assets)
  • Identifying, securing and collecting in the deceased’s assets
  • Paying expenses and liabilities
  • Distributing or otherwise managing assets in accordance with the deceased’s Will.  If the executor is also the trustee (see below for further guidance), this may include holding and managing assets/funds on trust (e.g. a life interest trust, or trust for a minor beneficiary)
  • Accounting to beneficiaries for funds collected, payments made etc.
  • Attending to final tax matters for the deceased, and estate tax compliance
  • Dealing with claims/potential claims
  • Contacting the deceased’s banks, insurers, share registries, KiwiSaver provider, utilities providers etc. so that the relevant accounts can be closed and dealt with
  • Exercising powers of appointment (often power of appointment of trustees) where the deceased was the settlor or otherwise held powers in connection with a family trust

In some cases the executors also have to help manage and resolve family tensions that often rise to the surface on death.

What are some of the qualities you should be looking for in an executor?

In light of the above, the executor should be someone:

  • The will maker trusts, and who has the skill set to deal with the role (e.g. well organised, dependable, good with paperwork)
  • Who is capable of engaging with and instructing lawyers and other professionals whose help may be required in connection with the administration of the estate
  • Who is not too old/likely to die before the will maker
  • Who is likely to be available and have the time/capacity to deal with it following the will maker’s death – preferably someone who lives in the place where the will maker lives, or at least in New Zealand
  • Who is not likely to go overseas, or be hard to track down following the will maker’s death

Are there any restrictions?

If an individual, an executor will not be entitled to a grant of probate until he/she has attained full age (currently 20 years old) or he/she is at least 18 years old and is or has been married or in a civil union. 

Probate is a court order recognising a will as authentic and confirming that the executor has authority to deal with the deceased’s estate.  Generally speaking, probate will be required if the deceased’s estate is over $15,000 in value. 

Who would commonly be appointed as executor?

The most common options are:

  • Spouse or partner
  • Parents (for younger people)
  • Children (for older people)
  • Siblings
  • Trusted family friends
  • Trusted professional advisors – lawyer and/or accountant
  • Trustee company e.g. Public Trust or Perpetual Guardian

How many executors should be appointed?

It’s worth thinking about appointing two or more executors, particularly where there are ongoing trusts.  However, you don’t want too many people involved – more than 3 would be unusual and 2 would be more common. 

It’s also worth naming alternates or back-ups – people to act if the first named person/people can’t.  This might be especially important if your original executors are the same age or older than you.

Can the executor also be a beneficiary under the will?

Yes

What is the difference between the role of the executor and the trustee?

The trustee is responsible for holding the will-maker’s assets until they can be paid to the relevant beneficiaries.  The roles of the executor and trustee are often combined, and we have assumed the executor and the trustee will be the same person(s) in our automated will. 

What is the role of an advisory trustee?

An advisory trustee is someone who can input into the trustee decisions without having all the formal powers and responsibilities of being a trustee.  An advisory trustee can also be a beneficiary under a will.  In our automated will, we expressly ask the will-maker to confirm this.

Should I get the approval of the executor?

Whoever you choose, you should get their approval before naming him/her/it as executor in your will.  You want to ensure that they know what will be required of them at what could already be a stressful time, and that they are happy to carry out the role.

It is a good idea for them to hold at least a copy of the signed will and that they know where to find the original (if they don’t hold it for you).

How much do executors charge?

Most family members and close friends will carry out the role for free.  For third parties such as trustee companies and lawyers, they will take a fee which will come out of your estate. These fees can be calculated in different ways, and you should enquire how your intended executor will charge in deciding whether to appoint them.

Who should I contact if I have any further questions?

This is only a very high level summary for general information purposes, and is not tailored to any particular circumstances, and is subject to the LawHawk Terms and Conditions.  For further advice that you can rely on in relation to your particular circumstances, contact Matt Hay or one of the other lawyers on our directory who specialise in trusts and estates.