What you need to know about executors

Date: Sep 18, 2015

When it comes to estate law, the person assigned to carry out the directions of the will, the executor, is an incredibly important party. These people have been chosen specifically by the testator and will be expected to fulfil these directions once the maker of the will has passed away.

Is there a minimum age for an executor?

A testator can appoint someone of any age to be an executor of their estate, but the process is different if the executor is under the age of 18. In this instance, a limited grant of administration can be granted to the guardian of the executor, which expires on the day they turn 18. The executor can then obtain a grant to complete the administration of the estate.

Is an executor entitled to a commission payment?

Finalising the directions of a will may appear to be a task without payment, but there are certain occasions in which it is possible for the executor to receive some compensation.

Rarely, there can be a specific legacy that is left in the will for the executor to cover their work. In this circumstance, there is no need for another order for payment of the commission. Alternatively, if there is a legacy or another bequest to the executor, there is what is called a prima facie presumption that this legacy (or bequest) cover their entitlement to commission.

Executors also have the right to apply to the Supreme Court for commission, even if the will has no specific allowance.

What happens if an executor wants to forfeit the responsibility?

In certain circumstances an executor may wish to forgo their responsibility to distribute the estate after the deceased has passed away.

Relinquishing the role of executor is possible, and an executor only has to sign a formal renunciation and file it with the Supreme Court of NSW. If an executor does not wish to have the responsibility any longer, they should file this renunciation as soon as possible, as renunciations may not be effective if they have completed even a few of the duties that come with being an executor.

To learn more about the wills and estates process, it is a good idea to engage with professional lawyers capable of providing the right advice. Our wills and estates team is also able to advise you on any contested will queries that you may have.