Although a will should appoint an executor, it is still valid if it does not. The executor is responsible for seeing that the terms of the will are carried out, defending it against any challenge and applying for probate if necessary. Anyone over the age of 18 can be appointed executor. Usually a major beneficiary is nominated. It should be someone you trust, who will act responsibly, and who has agreed to be your executor. Appointing someone younger than yourself, or appointing more than one person, is a safeguard against your appointment becoming void if your executor dies before you. If more than one executor is appointed, it should be made clear whether they are to act jointly or if the second person is only a substitute. It may also be easier (although it is not compulsory) to have an executor who lives in the same state as you.
If a person is unwilling or unable to be executor
If a person appointed as an executor does not wish to act, or is not able to act, they can formally renounce the appointment. The substitute or alternative executor will then act. If no alternative is named in the will, or no executor named at all, the Succession Act 2006 provides who will manage the estate (usually the major beneficiary). This person is called an administratorrather than an executor, but their responsibilities are essentially the same.
The executor of a will is responsible for seeing that the terms of the will are carried out. The executor completes the legal documents and searches for the assets, or arranges for a lawyer or trustee company to do this.
Being an executor may involve:
- applying for the death certificate from the Registry of Births, Deaths and Marriages
- arranging for the disposal of the body (the deceased may have stated in their will what they want done with their body, but such wishes are not binding on the executor)
- looking after the funeral arrangements if the will specifically requests this, or if there is no next of kin available
- locating and identifying the assets of the deceased.
You may wish to leave your executor a cash legacy under your will to compensate for the time involved in being an executor. Even if this is not done, every executor has the right to apply to the Supreme Court for payment from the estate for the work they have carried out (see Payment of executors).
Appointing a third party as executor
If you don't have a close relative or friend to name as executor, you might consider appointing a lawyer or a private trustee company. If you appoint a lawyer, it can be the lawyer who prepared the will, although this is not essential. It is also a good idea to appoint a corporate body such as a private trustee company when the estate is large or complicated, or will require long-term administration, as this avoids problems that might arise if an appointed executor dies or if some family members are unhappy about the terms of the will. Private trustee companies are listed in the Yellow Pages.
Appointing a lawyer or trustee company as executor may make the administration of the estate a bit quicker, but it may cost more. Before a lawyer accepts being appointed as your executor, the Law Society requires them to advise you of certain cost-related aspects.