The executor(s) of a Will are the person(s) appointed by you to look after your affairs/estate once you die and to make sure that your wishes, as set out in your Will, are put into place. This executor(s) take out what is called a "Grant of Probate", which is the legal process to prove the Will and give the executor(s) the authority to carry out the wishes in the Will.
The responsibility of administrating your estate and carrying out your wishes in your Will on your death falls to the executor(s) and therefore you should give careful thought to your choice of executor.
Can your Executor(s) benefit from your Will?
Yes, executors can legally be beneficiaries of your Will.
The duties of an executor
The duties of an executor include the following:
- Taking charge of and protecting your assets, such as making sure that the property is insured, that property tax is discharged, ascertaining what assets you have (i.e. bank accounts, shares, pensions and life policies, etc.);
- Taking care of funeral arrangements – you should let your executor and family know what your wishes are in relation to burial and funeral arrangements; It is common that the reading of the Will takes place after the funeral. While an individual can set out their wishes as to their burial and funeral arrangements in their Will, it is important to let the family know as it is common for family members to make arrangements without reference to an individual’s Will.
- Notifying the beneficiaries named in your Will what gift or share of the estate they are to receive.
- Obtaining the Grant of Probate from the High Court which gives them authority to administer your estate. This is a High Court document that the executor applies for so he/she can gather in the assets of the estate and distribute the estate as per your Will.
- Paying funeral expenses and discharging any debts of your estate.
- Finalising any outstanding income tax returns.
- Distributing your assets according to the directions you have set out in your Will. Sometimes in order to distribute your assets it may include the selling the property, shares, etc.
Who should you appoint as your Executor(s) in your Will?
- An executor doesn't need any special skills, but you do want someone who you would deem to be reliable.
- While there is no limit on the number of co-executors you can appoint, for reasons of practicality you should only appoint a maximum of 3. This covers the eventuality that an executor dies before you or an executor is unable or unwilling to act as executor after your death.
- While you don't need their consent, it's advisable to discuss your intentions or wishes to make a said person as your executor before you make your Will.
- Mostly it is family members who are appointed as executors and ideally the executors should be living in the country to avoid any practical difficulties.
- There is no age requirement but you probably shouldn't appoint someone who is too elderly or still a minor.
- It is important to note that if you appoint an executor who is under the age of 18 years at the date of your death, they will not be permitted to apply for the Grant of Probate. The minor’s guardian or such person as the court thinks fit can be appointed to apply for the Grant of Probate for the minor.
- Appointing professionals can lead to costly additional fees for your loved ones. Should they need professional help and advice, they can hire professional advice as and when they need it.
The Residuary Clause
- The Residuary clause deals with the remainder of your estate after all specific gifts and bequests have been made and all claims of the estate are satisfied.
- The Residuary clause includes any estate you accumulate/inherit after you have created your Last Will e.g. you inherit a priceless Monet painting from a deceased relative after you create your Will. If you don't amend your Will to specifically bequest the Monet, the priceless Monet will be dealt with by the Residuary clause.
- The Residuary Clause gives the right to the residuary estate to one or more named beneficiaries.
- The Residuary Clause handles property that may have been overlooked or not otherwise disposed of in the Will.
- The Residuary Clause can handle bequests that are void due to the death of the beneficiary.
- The Residuary Clause also covers property that is acquired after the Will was written, and which was not specifically mentioned within the Will.
- It is a very important clause as without it, any property which is not specifically dealt with in the Will would pass according to the Rules of Intestacy