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The roles within your Will and Enduring Power of Attorney

Author: Tracy Pratt
2 min read
17 January 2023

Key Takeaways

  • The role of executor is important as they are appointed to carry out your Will.
  • Your estate is administered and distributed according to your Will and the law.
  • Your executor should seek legal and accounting advice to ensure they comply with their obligations.
  • The role of trustee is important as their appointment to manage the money and assets set aside for your beneficiaries can last for many years, especially if your beneficiaries are young children.
  • You can establish various trusts within your estate for the benefit of your beneficiaries and direct the management of those trusts.
  • When the trust comes into being the trustee should seek legal and accounting advice to ensure they comply with their obligations.
  • The role of guardian is an extremely important role as they are appointed to be the substitute parent for your children.
  • Who you chose to be the guardian for your children is a very personal decision and should be made after consultation with the proposed guardian and potentially your children.
  • You can also establish various trusts within your estate for the benefit of your children and direct the management of those trusts to include appropriate contributions towards the upbringing of your children.
  • The role of attorney is an important role in your estate planning.
  • Once your attorney’s power is activated, your attorney will be able to make all financial and personal/health decisions on your behalf.
  • It is important to be aware of the powers that you are giving your attorney and when they are given together with any pitfalls.

In the first part of this series, we look at the role of the executor in your Will.

The executor’s role is to administer your estate according to your Will and the law.

Whilst the role of executor is purely an administrative one which normally last 6 to 12 months, it is still an important role to play.

The decision as to who you wish to be your executor is ultimately a very personal decision for you.  Your executor should be someone who you trust and is usually related to you. A person who has some commercial or business experience would be ideal, although may not be necessary if legal and/or accounting advice is obtained. Couples usually appoint their partner as first executor.

An alternate executor is also appointed to act if the first executor cannot, usually due to death, incapacity or bankruptcy. 

Your executor will call in all of the assets in your estate for distribution to the beneficiaries named in your Will. 

This will include contact with banks for release of bank account proceeds, contact with retirement village or nursing home for a refund of any bond paid, transmission of any real property to the personal representative (i.e. the executor/s) to allow for the property to be sold and/or beneficiaries, transfer or sale of shares and notification to numerous authorities including government institutions, electricity and phone providers, insurance companies etc.

Generally, if your estate exceeds an amount of $50,000.00, your executor will also need to apply for a Grant of Probate (which is filing the required documents in the Court for the Court to approve the Will and giving the executor the requisite authority to deal with the estate according to the Will).  The administration of your estate will necessarily pause until the Grant issues from the Supreme Court.

We make it a practice to advise all executors about any administrative or distribution issues which are sometimes overlooked. For example, executors may incur personal liability by distributing the estate before certain persons have had an opportunity to make a claim for better provision under the Will. Section 44 of the Succession Act provides that if executors refrain from making a distribution for a period of 6 months from the date of death then they are protected providing no notice of a potential claim has been served on them within that 6 month period.

We appreciate there is a lot to get through during the difficult task of administering and distributing an estate. We are professionals who have done this many times, and are happy to assist the executor/s throughout the entire process to make it as easy as possible.

To discuss an estate plan for your individual circumstances, please contact Tracy Pratt, Lawyer from our Wills, Estates & Trusts team for a free initial consultation on 07 3220 1144 or email.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

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