Being appointed an executor is a big responsibility and can sometimes be a time-consuming task. Follow our practical tips below to make the job a little easier for your executor.
Tip 1: Make a formal will
For a formal will to be valid, it must be in writing and you must sign it in the presence of two witnesses. Informal wills such as video recordings, letters and text messages can still be declared valid, however getting to that conclusion is costly and time-consuming for the people you leave behind. A properly drafted will is certainly the best way to avoid the host of problems that can arise from an informal document.
There are no laws preventing you from making your own will, however we recommend that you consult a lawyer with expertise in estate planning.
Tip 2: Talk to your executor and have a backup
Before you make your will, talk to your executor to make sure they are willing to be appointed and also tell them where your original will is going to be kept. It is also a good idea to have a backup person to save you having to amend or re-write your will if your executor dies or becomes unwilling or unable. If none of your friends or family are willing or able, you could consider appointing your lawyer or accountant. Just remember to check with them first and ask them about their costs.
Tip 3: Consider capacity issues
If you do not have testamentary capacity, you cannot make a valid will. If you are concerned that after you die there might be a disagreement about whether you had testamentary capacity when you made your will, see a lawyer first and get them to write to your GP. The legal test for testamentary capacity is quite involved and often a one-line letter from your GP saying that you have capacity is not enough to satisfy that test.
Tip 4: Contemplate any challenges to your estate
If you do not adequately provide for certain people, they might make a claim on your estate under the Family Provision Act 1972 (WA). There is no way to prevent these claims, however there are ways you can assist your executor and the courts. If you purposely leave a close relative out of your will or perhaps decide to only leave them something minor, leave a detailed explanation in your will as to why you have chosen to do this.
Tip 5: Think about things which are not part of your estate
It is a common misconception that your superannuation will form part of your estate when you die and will be distributed according to your wishes in your will. If you want this to happen, talk to your super fund and make a binding death benefit nomination to the trustee (executor) of your estate. Also turn your mind to any family trusts you have and make sure they have provision for what happens when you die.
Tip 6: Keep good records and leave some money in a bank account
Your executor has to collect all your assets and distribute them according to your wishes. If you have complex finances, including a share portfolio, try to save all the relevant documents together. Also, one of the first things your family and friends will do when you die is organise your funeral and this can be expensive.
To avoid it being a financial burden on your executor, we recommend you provide for this in your bank account. In our experience, if your executor presents your funeral invoice to your bank, they usually authorise release of your funds to pay it, even without a grant of probate.
Have more will and estate planning questions? We have a handy Q&A resource on our website that might have the answers. Attend one of our free Will and Estate Planning Seminars presented by Claire Hawke-Gundill.
The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.