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Executor – friend or family?

The Executor of a Will is charged with the task of carrying out the terms of the Will.  Often, the Executor must make decisions.  For example, if a property is to be sold, will the sale be by auction or private treaty?  Should the property be improved before the sale or sold “as is”?  Should it be offered to each of the beneficiaries to purchase before it is placed on the open market?

At all times, the Executor is bound to act in the best interests of the beneficiaries.  However, sometimes the interests of one beneficiary is different to the interests of another beneficiary.    Where the whole estate is to pass to the children of the Willmaker, it is often tempting for the Willmaker to nominate one or more of the children as Executors.  The argument often is that he or she is responsible and will act fairly.  However, this is not always the case. if the Executor wants to acquire one of the assets in the estate (from the estate) then the Executor is placed in a very difficult position as it can be perceived that the Executor is preferring his or her interests to those of the other beneficiaries.  Further, if another beneficiary also wants that same asset, then it is likely that the Executor must step back . Therefore the executor would be prejudiced as a result of being appointed to the role.  An alternative is for the Willmaker to appoint an independent person as Executor.  A person who can act in the best interests of the beneficiaries and who has no emotional interest in the decisions to be made.  

An Executor is entitled to claim executor’s commission and the amount of the commission is determined by the Court (usually between 2% and 4% of the value of the estate).  Alternatively the Willmaker may to leave a bequest of a reasonable amount to the executor in lieu of executor’s commission.  The amount can be determined by the Willmaker taking into consideration what the Willmaker considers the work involved in administering the estate.  By leaving a bequest rather than leaving it to the Court to determine the executor’s commission, expense can be avoided and also delay.  

Every Will must include an Executor and an appointment should only be made after careful consideration.  If in doubt, the Willmaker should consider appointing an independent person to the role.

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