You may be surprised to be named as an executor in a friend or family member’s will. Hopefully it has been discussed with you in advance as the role brings with it legal duties (see this article for details about those) and, depending on the Estate, may require a significant amount of time from you. While the costs you incur as an executor (such as paying professionals or funeral expenses) will be reimbursed from the Estate, only professional executors (such as lawyers) will be paid for the time they spend managing an estate.
Do I have to be an executor?
If someone appoints you as their executor, you are not required to accept this. However, bear in mind that once you decide to take on the role of executor, you cannot later change your mind.
In order to help you make this decision, you are allowed to investigate the will-maker’s estate (i.e. consider how big the estate is and whether there are any complicating factors). However, you will need to be careful not to take possession of or make decisions about the will-maker’s property, as the Court may treat that as you accepting the position of executor.
Some people will not be legally allowed to become an executor. For example, someone who is not of sound mind or someone who is a bankrupt.
You should not accept an appointment if:
- you do not believe that the will which appoints you is legitimate – perhaps because the will-maker may have been of unsound mind at the time it was made. (If you have concerns whether the will-maker was of unsound mind, we can discuss this with you).
- you consider that you have a claim against the Estate because you consider that the will does not properly provide for you (See this article for more information about whether you have a potential claim).
There are also circumstances which may suggest you should not take on the appointment. For example, if you live overseas and infrequently return to New Zealand, it will be more complicated for you to carry out your role and would likely result in higher costs for the Estate to bear.
What happens if I decide not to accept an appointment as executor?
If the will appoints multiple executors or a back-up executor, then those individuals can proceed to accept their appointment.
If you are the sole executor named in the will, then someone will need to apply to the Court to be appointed as the administrator (with first preference given to a close family member).
What about my personal interest in the Estate?
It is common for a will-maker to appoint a family member as their executor who is also going to be a significant beneficiary under the will.
This means that if a claim is made against the Estate, you will have obligations in your role as an Executor, but also a personal interest in how you want the dispute to be resolved. In these situations, it is crucial to get independent legal advice in your personal capacity. The lawyers acting for the Estate can only advise you as to how the Estate should proceed. The same lawyer acting for the Estate will not be able to provide you with advice personally.
If I do agree to be the executor, what happens next?
One of the first steps for an executor is usually to apply to the High Court for probate. We explain more about that process in this article.
We have experience in assisting executors, and providing advice to people in their personal capacity. Please contact us to discuss how we can help you.
This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.
