Legal Tip 192: Can Children be Executors under a will?

Children are considered legally ‘disabled’ until they reach the age of 18. They can be appointed as executors under a will, but if the testator dies while the child is under 18 the child cannot act as executor.

So what happens?

Usually their legal guardian will be executor in their place, or the courts can appoint someone else.

Under NSW law this would be s 70 of the Probate and Administration Act 1898
PROBATE AND ADMINISTRATION ACT 1898 - SECT 70 Minority of sole executor


Having a child’s guardian being your executor could put the control of your estate into the wrong hands.



Example

Bart has divorced the mother of his sole child – Junior.

Bart makes a will while Junior is 11 and appoints Junior as the executor of his estate with no backup. Bart has no plans on dying but carks it in a skateboard accident when Junior is 16.

Junior’s guardian at this point is her mother. The mother applies for probate as guardian of the executor and this is granted by the courts.

Bart roles over in his grave when his ex-wife, whom he still hates, takes control of his estate.


First posted to The Structuring Blog – Structuring Articles by Terryw

 

Thanks Terry!

Who would be a suitable executor? I could nominate the adult kid if something happened to us, but I not sure if she would know/have enough experience to be one.

 

Well anyone could be as they could use lawyers for most of it. But someone with a bit of nouse would be good. ( Is nouse a real word? My spell checker doesn't think so)

 

As far as I'm concerned "nouse" is a proper word. English is flexible. And if it isn't let's make it so.

It's an interesting one @Anne11 has raised. I had some lengthy discussions about this with the solicitor and was decided to insert two clauses.

The first in respect of any investing decisions expressing the strong wish the Executor seek professional advice from a person qualified in those matters.

The second was if none of the blighters wanted to be Executor they could refuse and hand the administration over to joint Executors being a legal firm and a financial firm. Better than having the Public Trustee involved I thought.

Sheese, I have trouble comprehending the 28 page, 36 clause document I signed. No way would I attempt to deal with me after my death. Off to get proper advice it would be.

Anyway won't be my problem. I won't own anything and that amorphous mass called a Deceased Estate takes over.

 

I don't know about a non-law firm being an executor. They could do it but would not be covered by their insurer for this.

 

You got me worried there so I had another read of the relevant clause. It nominates senior director, principal or partner of each entity. So hazarding a guess it's appointing individuals who "happen" to be of the respective firms.

 

Yep i think there is actually an issue nominating a company.
But the persons won't be covered by their insurer either.

 

So nominating a person from a respectable law firm would be best? As long as the firm has been around for a number of years to ensure the firm still exists if and when their service is required?

 

If you nominate a lawyer if they move firms they still will be the nominated executor. Same if they stop practising too.

I personally would never agree to act except for a close family member

 

This is a bit off topic, but I just recently did my will (have no minors). When I was nominating my executor, my solicitor advised against using a lawyer as an executor. Instead, the beneficiary should be named as an executor because essentially, you want to make life easier for them.
From a personal perspective, I know that my sibling and I will be beneficiaries to my parents wealth, yet they have named their solicitor as the excecutor- I can think of nothing worse than dealing with them if/when the situation arises.

I can’t comment with respect to the situation with minors and what the solution could be..

 

I can't recall any wills that I have drawn up that have someone other than a family member as executor.

 

I do wonder sometimes how far you can go with these matters.

Sure I've included unnamed members accounting firm and a legal firm on a "just in case basis" and sure there are also clauses of what happens if either firm changes name or amalgamates (both are mid-tier firms and not solo practices) but I take the view it's unlikely to eventuate. Possible but not probable is my approach.

As for the competency, financial or otherwise, of the Executors not much can be done about that I reckon. I've made my assessment of them as to ability and trustworthiness obviously, otherwise they would not have been nominated as my Executors. Now it's pot luck as to their judgement.

I've included a strong wish professional advice is sought in dealing the contents of my Will. If they don't and it turns into a cat fight, zilch I can do about that. I'll no longer be here.

My beneficiaries will either use the bequest wisely or they wont. They will either co-operate and deal fairly according to my Will or they wont.

 

I agree. You should try to set up things in a way that is tax effective and gives good asset protection to your heirs, but then the rest is up to them.

I think the best would be to die without assets - but giving things before death triggers tax for you and them. Perhaps best to just spend it all.

 

It's not for want of trying but the bloody money keeps coming in bugger it.

 

Just a heads up to make sure you know who you are getting involved with. My mate just had a dreadful time having an estate settled through a reputable law firm in Perth. The short version is that all siblings agreed with what should be done but the executor would not follow their instructions. One of the siblings is a very experienced solicitor and wrote a legal opinion for my mate which the executor dismissed. The issue related to a proposed payment to a real estate agent that the agent was not entitled to under the contract. The executor was wrong but what can be done? In the end they sorted it out but not without considerable expense and a lot of wasted time. The executor created the legal problem then took money from the estate to pay the costs of resolving it. I thought it was discraceful behavior actually.

All this means is you need to be careful when selecting a law firm.

 

A relative of mine used a solicitor and the ******* stole money from the estate from the trust account. And charged fees for probate and didnt lodge anything and so on....

Peter Khoury, Former Solicitor from Hornsby.

Good example of the benefits of dealing with a solicitor. His fees and his unauthorised appropriation are covered by the NSW Fidelity Fund.