Legal Tip 298: Nominated as Executor but don’t want to do it?

Discussion in 'Wills & Estate Planning' started by Terry_w, 27th Jul, 2020.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    I don’t blame you if you don't want to act as executor!

    Some people nominate family or friends to be the executor of their estate when they die but don’t ask the person if they would agree to act. Perhaps they expect their death to be a long way off or perhaps it might seem difficult to ask.

    Sometimes people agree to be executors and then when it comes time they back out. I have seen this play out when a friend had cancer and another friend agreed to act as executor. When the death actually happened a few months later the guy who promised backed out saying he had sought legal advice and it seemed there was too much risk involved with being an executor.

    There is nothing to stop a person that is nominated from refusing to act. It is up to them if they will take the role or not. But it can be difficult to pull out mid administration so if you have any doubts it is best to avoid taking the role in the first place.

    If the executor nominated in the will refuses or cannot act then the back up executors will be the next in line to act. They may refuse to act as well and then it will fall on the next in line – the back up back ups. It is generally a good idea to have 2 back ups at least.

    Where there is no one left that is named in the will as the executor then probate cannot be applied for. Someone will then need to apply to the courts to be appointed administrator of the estate. This is called letters of administration with the will annexed.


    Example

    Homer dies leaving Marge as his executor with Bart as a back up. Marge was in the accident with Homer and she is now lacking the capacity to act. Bart is the next in line, but he doesn’t understand how all this works and refuses to act. Lisa. His sister is willing to act, but she was not named as an executor in the will.

    Lisa will need to apply to the court to be appointed Administrator of the estate to act under the terms of the will as if she was the executor. It would have been easier had Homer updated his will to include her as the 2nd back up – but he didn’t.
     
    Ted Varrick, codebeard and Perp like this.
  2. Millie

    Millie Well-Known Member

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    Terry_w likes this.
  3. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    that is extremely messy!
     
  4. Trainee

    Trainee Well-Known Member

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    Would one failsafe be to nominate a lawyer as a last backup? i.e. the estate just pays for the service?
     
  5. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Not really.
    a) a lawyer wouldn't act as executor, and b) in this case the woman acting as trustee just didn't keep records.
     
  6. SatayKing

    SatayKing Well-Known Member

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    The Law Society published an article about that. It was ages ago though.