Executors and Trustees

Executors

Executors are charged with administering the will – that is, they put into operation what the will says. It is best to appoint more than one executor. Problems that can arise with executors include:

• There being no executor appointed. The Supreme Court Probate and Administration division can step in to appoint a person to act as an executor or administrator.
• The executor does not wish to act. If an executor renounces their role, the duties will fall to another executor named in the will, or the Supreme Court will appoint one.
• The executor dies before the testator. If there is another executor, the duties under the will fall to them. Otherwise, the Supreme Court will step in.
• The executor dies after the testator. If this happens, the executor of the dead executor’s estate becomes executor of the deceased estate.

Duties of Executors

The duties of executors are to collect the assets of the deceased estate and distribute them to beneficiaries. This is subject to issues such as debts, certainty that the will is the last will of the deceased, and the waiting period after the death of the testator to ensure that the beneficiaries survive the testator for 30 days (s49, Wills Act).

Before distribution of gifts or assets, the executor is the owner of the deceased’s property. The executor is responsible for selling assets if there are money gifts in the will, but no money. 

Rights of Beneficiaries against Executor

A beneficiary can only complain to the Supreme Court about an executor for failing to act with diligence on the behalf of the beneficiaries. 

Payment of Executors

Payment of executors can be provided for in the will. Often, executors are also beneficiaries. Solicitors cannot receive a commission for execution of a will unless the deceased sought independent legal advice prior to signing the will

Trustees

Often a person will be designated as an ‘executor and trustee’. While an executor’s role finishes with the collection and distribution of the deceased’s assets, a trustee’s role is ongoing. For example, a trustee may be required to continue to perform duties under the will for the continued maintenance of young children, or where there is money to be administered over a longer period. 

The general duties of a trustee are to act in good faith, to act honestly, and to carry out the particular duties of the trust given to them under a will.