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Independent executors

It is worth considering the appointment of an independent executor to act in your interests when it comes to dividing up your Estate. In many cases, a person making a Will appoints their spouse as executor and then their adult children as alternative executors. This is fine if there are fewer than four adult children and they get along.

However, if your adult children do not get along or one or more are not well versed in handling money and/or administering business matters, then one or more appropriate adult children may be appointed or the eldest child or a male child may be appointed.

The duties of an executor are to uphold the terms of the Will and administer the Estate according to law. Joint executors must act together.

Generally an executor’s duties include:

  • Verification of assets and liabilities;
  • Applying for Probate (verifying the Will, Death Certificate and Assets/Liabilities of a Deceased Person);
  • Calling in assets/transferring assets to beneficiaries (as required by the Will);
  • Obtaining a Tax Clearance; and
  • Distributing the Estate

An alternative to appointing a child or family member Executor is to appoint an independent executor. It is an option worth considering, particularly in situations where:

  • Children are minors-and you can change your Will when your children become suitable responsible adults for appointment;
  • Asset structures or Estate administration is of an onerous nature and will require necessary skills – for example running a business;
  • Spouse grants a Life Interest to their surviving spouse who may not act impartially;
  • Trust for a Beneficiary with a disability; or
  • Charitable Trust is proposed

Who can be an Independent Executor?

An Accountant or a Solicitor or a Trustee Company may be appointed as an Independent Executor.Trustee Companies are empowered by Statute and must hold a Licence to act as Executors.

An Independent Executor if appointed will need to be remunerated by commission, legacy annuity or otherwise to reward them for performing their role. This cost factor may influence your decision whether to appoint an Independent Executor or not. Trustees Companies must provide an up-todate fee schedule on their website.

Nicholas O’Donohue and Co. offer Independent Executorial services.

Our lawyers provide advice to Trustees,Trustee Companies, Executors and beneficiaries on Probate, Wills, Powers of Attorney, Medical Treatment, Guardianship and Retirement issues. Our Client Services Team arrange presentations in house and to client groups by arrangement.

Contact our Client Services team 9607 8100 or email: clientservices@nodco.com.au