Where there is a (last) Will (and testament), there is a way. Without this most crucial of documents, unfortunately, not only is there a no absolutely clear way for settling an Estate, things can get downright wayward.
Arguably, though, just as important as the thought and care dedicated to what you want to happen to all your worldly goods and affairs when you pass on, is to whom you’ll entrust the responsibility of overseeing your Wills realisation.
See, while you may set everything out very specifically in black and white, posthumously there are countless variables that can see your world take on unexpected hues of grey. And that’s just one of the reasons why you want your Wills Executor or Executors to be willing, able… and on your wavelength.
Myths and incorrect assumptions abound when it comes to Wills. Take this one for starters. You specify categorically you want a private funeral service, to be laid to rest in your favourite blue suit, in a plot next to your Grandparents. Sorted, right? Not necessarily.
Janice’s Lesson Number 1: Your funeral plan is one of a couple of areas that can only be expressed as a “wish”, and never constitute a binding direction. In short, there is no legal obligation on your Executor to adhere to all, or for that matter any, of your written instructions regarding your final farewell.
Will Power
It would be a rather malevolent Executor who wilfully ignored your wishes for no good reason, but sometimes things do get lost in translation. That’s why it’s really important to, firstly, commit your wishes as clearing as possible to paper in a formal Will. (Rather than opt for a DIY document, explore using a Lawyer – many will draw up a simple Will at absolutely no cost, but provide the peace of mind that it’s been prepared to the letter of the law).
The second step is to talk through your wishes – be they pertaining to your funeral, or anything else of importance to you – with your Will’s Executor(s) and your nearest and dearest. Remember, this is the one document for which you are not going to be around to clarify, amend or oversee. If there is going to be any confusion or differences of opinion, and you want some say in the resolution, now’s the time to start talking.
In terms of fundamentals, another biggie is to avoid leaving your Executor (who can also be a beneficiary of your Estate) an unwelcome legacy from the get-go: a great wild goose chase to track down your Will. I read research recently that showed, when their time comes, a third of Wills can’t actually be found.
Janice’s Lesson Number 2:On that note letting your Executor(s) in on the fact that you’ve nominated them for this vital role is a pretty good idea too. This is not a duty you want someone to be taking on grudgingly or without informed consent. What’s more, a nominated Executor can formally renounce the role after your death, potentially leaving the courts to decide a replacement.
Thanks… But, No Thanks
It can come as something as a shock to first time Executors exactly what their responsibilities encompass, and just how long those duties can endure.
In cases where it is prudent, due to family dynamics or, perhaps, the complexity of the Estate, it is quite common for Lawyers, Accountants and other professional advisors to be named as one of the Executors and be paid for their expertise and independence. However, for the most part, this is an entirely voluntary, albeit potentially onerous and time-consuming role.
Janice’s Lesson Number 3: That reality check can be enough to see some would-be Executors decline. Even the most straightforward of Estates take time – many months, if not years – to settle, the Executor must be there every step of the way. Does your intended Executor have the time? Especially where there are more complex tax, legal or family situations in play. Do they have the knowledge and skills necessary?
Initially, there are the funeral arrangements and sourcing the death certificate (crucial documentation for filling in the many forms required to close accounts and the like). In cases where there is land involved, or a sum of money in any one institution, exceeding $11,000, your Executor may also have to apply to the High Court for Probate.
Your Executor(s) will shoulder the responsibility for all manner of tasks, including: Gathering all you assets, identifying and settling all of your outstanding liabilities, arranging insurances and tax payments where necessary and ensuring what is left over is disseminated to nominated beneficiaries outlined in your Will. Then if someone lays claim to something not specified, it falls to your Executor to gather any evidence around the claim, determine is validity and try to find a resolution. Otherwise it can be off to Court…
Personal Liability
Just as every Will is different, so, too is the path each Executor will tread in overseeing the settling of the Estate. It is vital that those bestowing, and accepting, this role take on board the fact that this is by no means an “ah well good enough will do” job. Executors found to have fallen down in their duties risk being held personally liable.
Janice’s Lesson Number 4:First and foremost, an Executors overriding duty of care is to the Estates beneficiaries. Everything that is done must be in their best interests – which is not always the easiest of balancing acts.
When clients ask for advice on selecting the most appropriate Executor, I suggest three overriding attributes: First, an ability to deal with people; Second, an ability to deal with people and, finally, and most importantly, an ability to deal with people.