What is The Executor’s Role when Someone Dies?

Firstly, it is important to know what an executor actually is before we examine their role.

What is an Executor?

An executor administers your estate after you die. They are also known as your Personal Legal Representative. It is their job to manage all of your assets and liabilities and take care of all of your possessions. And they must liaise with your family to put all of your affairs to rest. 

Essentially as Executor has the power to deal with all of your property, as you have when you are alive. 

An executor is the person that you appoint in your Will to take care of everything after you die. The appointment of a trustworthy and reliable person to be your executor is one of the top reasons to write your Will. When you Write your Will, whether through our online Will Writing Process or face to face with one of our lawyers, you should choose the best person for the role as well as appoint an alternative, in case your first choice is not up for the task at the time of your death, for whatever reason. They do not have to be your executor, so you should check with them first before your appoint anyone. 

1. They Organise the Funeral  

The Executor’s first job is to arrange the funeral or cremation and decide on how the ashes are to be dealt with, if appropriate. This is of course done even before any of the legalities, such as obtaining probate are taken care of. This can be an emotionally charged and difficult role, so make sure that you appoint someone who is up to the task 

2. Take control of and Protect the Assets

Even before probate is granted the executor must secure all the assets. This may entail bringing home the deceased’s car from the hospital, making sure the home is secure and any pets taken care of. 

3. Obtain Probate

The nominated Executor must apply for the grant of probate, or if there is no Will, a Grant of Administration. It is better to have a Will so that you can appoint your choice of executor and prevent dispute amongst the family as to who will step into the Role. If there is no-one appointed then there will be difficulties in arranging your funeral and protecting your home, pets, and other assets until someone is appointed by the Court. Such a delay could cause a great deal of distress and a loss of your assets, never mind the well being of your pets being at risk. 

A grant of Probate or Letters of Administration give your chosen executor the legal authority to deal with your estate and all your property. 

The Executor will also pay off all the debts of the deceased and their estate, including tax. It should be noted that any tax liability, along with all other liabilities must be determined by the executor before distribution of the estate, and fully paid. 

4. Defend the Estate 

 If there are any challenges to the estate or will, the executor must defend them so as to uphold the terms of the Will. This could be a claim where a person feels the Will maker has not provided for them sufficiently. 

If the executor themselves wants to challenge your Will, they would need to withdraw as your executor due to this conflict. 

5. Put into effect the terms of the Will

Your Will is an expression of your wishes of what should happen to your property after you die, what gifts you would like to leave to your loved ones, and how you would like the gifts that you give to be protected where some family members may have difficulty managing a substantial sum of money, such as a child or person under disability.

If you have worked hard during your lifetime, and love your family, you will want to make a note in your Will to gift the fruits of your hard work to those that you love, in such a way that it protects both your loved one and the gift so that they can derive the maximum benefit from this gift. That is why we have created the best online Will, so that this process is easy, inexpensive, and effective.

6. Manage your Trusts created in your Will

If you create a testamentary trust in your Will, your executor can take over the role of trustee, or you can appoint a separate trustee to hold some or all of your assets over a period of time with the aim of protecting the property and the person who is to receive the benefit of this gift.

The trustee deals with the estate after the executor administers it until the assets are ready to be distributed.  

The trustee must file tax returns, after obtaining a separate tax file number for the estate or trust as relevant.  The trustee may be required to pay tax on behalf of certain beneficiaries such as foreign residents. The executor and trustee are usually the same person and on a practical level the roles are merged.  

Download our FREE Guide to Testamentary Trusts and why you Absolutely Need One, to protect your family and hard earned assets. Why let the tax man or someone else get their hands on your money?

7. Act as your Appointor

If you have a family trust in existence before you die, your executor shall become the appointor to that trust. That means that they can appoint a new trustee. This is an extremely powerful position as they can appoint someone who may be biased against some of your beneficiaries in a way that you may not intend.

You can therefore appoint a new Appointor in your Will, who can then nominate the trustee to your existing trusts.

8. The Executor’s year

This is the period in which an executor must wind up the estate and make a distribution in accordance with your Will. The executor cannot be compelled to distribute the assets from an Estate before one year has passed from the grant of Probate.

If you have any questions how our Online Will Writing platform can help you appoint the right Executor, please contact us.

Disclaimer:

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer at http://hazelegal.com.au Please note that we do not endorse any of the services mentioned in this article, they merely serve as an example.

10 Most Common Questions People Ask When Doing Their Will

A Will is a signed, legally binding document that describes how you want your assets to be handled after you die. What follows are the 10 most common questions that we get asked by Will makers.  

1. CAN THE WILL BE CHALLENGED?

If there are any issues about the legitimacy of a Will, it might be challenged or contested. 

A Will may also be challenged for the following reasons:

· Someone you were liable to support believes that your gift to  them is unfair portion or that didn't make enough provision for them. A close relative, such as a spouse, child or stepchild, grandchild, or parent, could be involved.

· That someone pressured you into signing your Will, and therefore it is invalid. This is difficult to prove, but it is best to have a Will that is drafted by a Lawyer and witnessed by them, to remove doubt.

Also, when choosing to do an Online Will, make sure that it is backed by a lawyer, who can review it and ensure that it is all in order. Remember that an Online Will Preparation platform is a way to work smarter and therefore offer a more cost-effective process, as we do, but do not use a DIY Will Kit from the post office that can’t be checked by a lawyer. Even the Best DIY Will Kit on offer should be checked by a lawyer. 

2. DO I LEAVE MONEY TO MY KIDS? 

You've worked hard and diligently in the hopes of providing anything for your children. While you may adore your son or daughter-in-law as if they were your own child, it's normal to question whether there are any ways to ensure that the money you leave behind stays in your family. 

While the subject may appear strange at first, it is one that many parents who leave massive wealth to their children ponder at some point. That's because if you leave assets to your child entirely, their spouse usually has an equal legal claim to them. 

There are, however, methods to leave money to your children rather than their spouses, so speak to us if you want to know your options. 

3. DO I NEED A TESTAMENTARY TRUST? 

Testamentary trusts are established by a Will to provide beneficiaries more flexibility over the transfer of assets. Testamentary trusts can offer tax benefits, making them a useful estate planning tool. 

There are two types of testamentary trusts that are usually used: 

Testamentary trusts with discretion.

Through a testamentary trust, the executor allows the beneficiary to take part or all of their inheritance in a manner that is right for their circumstances. The principal beneficiary may have the authority to nominate and dismiss the trustee, as well as to administer their inheritance within the trust.  

Protective Trusts

Protective testamentary trusts are used to protect a beneficiary must receive their inheritance through the trust and has no power to nominate or dismiss trustees. If the beneficiary is unable to handle their inheritance owing to age, incapacity, or spendthrift habits, this option may be advantageous. 

Download our FREE Guide to Testamentary Trusts and Why you Absolutely Need one, to understand all the ways they benefit you and your family.

4. DO I NEED A POWER OF ATTORNEY? 

Powers of attorney for financial and health care should be included in everyone's estate planning documents, along with a Will. Powers of Attorney apply for decisions made on your behalf while you are still alive 

A power of attorney can be used for a variety of reasons, and there are many different forms of powers of attorney. They are good to have in place right now because you never know when an emergency will strike and you'll need a power of attorney. If you become incapacitated and don’t have a power of Attorney the Court will need to appoint someone who they deem appropriate, potentially a stranger, to make decisions regarding your finances, health care and lifestyle choices. Other sorts of powers of attorney may be required only if a certain circumstance develops, such as to someone to sell your house while you are out of the country.

5. HOW WILL MY FAMILY KNOW WHERE TO FIND MY WILL? 

When someone dies, one of the most important documents they leave behind is their Will. It states who they want as executor to carry out their wishes and how their assets should be distributed. Extra instructions, such as burial choices or guardianship of minor children, can be included. With such important instructions issued, it is crucial that a person's last Will and testament be located as quickly as possible and that appropriate legal advice be obtained. 

So, where do you look for a deceased person's last Will and testament? A copy of a Will is normally maintained with the person's important documents, and it's always a good idea to inform the executors of where they may obtain the Will when the time comes. The original Will is required to apply for probate and provide instructions to various financial institutions. 

If a copy of the Will is discovered, the law firm or Will drafters who created it are usually listed on the cover page or in the addresses of the Will's witnesses. The law firm that prepared the Will normally keep the original signed document or can trace where it was sent. 

If you are unable to locate a copy, the best place to begin is by contacting the law firm that represented the deceased. This could be a law firm that has assisted them with real estate transactions, family law matters, or business advice. If you don't know of any law firm or Will drafter who worked for the deceased, phone the bank, as some banks still preserve records for their customers. Some people may lodge their original Will with the Supreme Court in their State. 

We offer a Digital Vault service where you can store all your important documents, including your Will, and when we receive confirmation of your passing we trigger the release of your documents to those of your choosing. This is the best way to protect your valuable documents and information. 

6. HOW CAN I ENSURE THAT MY WILL IS VALID? 

For a Will to be legitimate, it must include the following: 

· It must be in writing,

· signed by you,

· and signed in the presence of two witnesses.

To make a Will, you must have the mental capacity to do so and comprehend the consequences.

You must have made the decision of your own volition and without the influence of anyone else.

The Will should begin by stating that it revokes all previous Wills. If you have a previous Will, it should be destroyed. 

Again, it is best to consult with a lawyer, who will ensure that your document is valid, even when going through the Online Will process.  

7. HOW CAN I CHANGE OR CANCEL MY WILL? 

There are several circumstances under which amending your Will is recommended:

· Changes in your life,

· such as marriage,

· divorce,

· or the birth of a child

· or the sale or acquisition of certain assets,

may affect how you want to dispose of your assets after you die.

While there are a variety of reasons for updating a Will, it is critical to understand how to represent your current goals in your Will. Failure to cancel or amend a Will in the correct manner can lead to confusion and costly litigation.

In most states, rescinding a Will is a simple process. In general, you can revoke a Will by

(1) destroying it,

(2) creating a new one, or

(3) changing an existing one.

Giving up all of your property and assets before you die can sometimes have the effect of nullifying a Will. 

8. WHAT HAPPENS TO MY STUFF IF I DON’T HAVE A WILL? 

If you pass away without leaving a Will, you are said to have died "intestate." When this happens, your property will be allocated according to the intestacy laws of the state where you live. Any bank accounts, securities, real estate, and other assets you own at the time of death are included. The intestacy laws of the state where the property is located will apply to real estate so this can complicate things. 

If you were single, married, or had children, the laws of intestate succession differed significantly. Your property is usually divided among your "heirs" which could include your surviving spouse, parents, siblings, aunts and uncles, nieces and nephews. When no relatives can be discovered, the estate is usually given to the state. 

Using an Online Will process is a really easy way to ensure that do get the Will done. Just don’t forget to sign it. 

9. WHEN SHOULD I UPDATE MY WILL? 

After you've written your Will and kept it safe, you might be wondering how often you should update it. 

When you have a major life event, estate lawyers advocate amending your Will. Even if you don't think anything has changed, it's a good idea to reread your Will every four to five years. This ensures that your family is safeguarded and that your final wishes are carried out. 

Following these key life events, you should update your Will:

· You've just welcomed a new addition to your family. Whether you give birth or adopt a child, you'll want to make sure your child is taken care of and has a legal guardian listed in your Will.

· The status of your marriage or de facto relationship changes. Weddings, divorces, and the death of a spouse or partner are all good reasons to amend your Will's beneficiaries. (You might also want to update your enduring financial power of attorney and medical power of attorney to ensure that someone can make choices for you if you become incapacitated.) It's also worth mentioning that, unlike your biological children, any stepchildren you may have or may not have no legal claim to your property. You can name them as beneficiaries in your Will if you want to include them.

· You have received a cash windfall. Sudden wealth increases can be a pleasant surprise. You can modify your beneficiaries, increase your gifts, or leave a charitable bequest as a legacy.

· You've had some financial difficulties. Your wealth may fall in some circumstances, such as if you lose money in the stock market. As a result, you might change your beneficiaries or the assets you leave them.

· The laws are subject to change. The laws governing taxes and estates can change at any time. Other estate planning options, such as living trusts or transfer, may become more appealing as a result.

· You relocate to another state. The laws governing estates differ from one state to the next. This isn't always the case, and if you examine your Will after each state change, you can avoid legal issues.

· Your health begins to worsen. It's a good idea to examine your Will while you're still healthy if you've been diagnosed with a degenerative condition or terminal illness. You may want to make changes to your Will or give things away now so that they aren't included in your estate later.

· You become a grandfather or grandmother. If you wish to include grandchildren in your Will, make sure to update it whenever your family grows.

· You have a change of heart about a beneficiary. People change their minds for a variety of reasons, not all of which are negative. Let's imagine you planned to give a sizable portion of your fortune to a disabled niece, but she no longer needs financial assistance. Perhaps you've become involved with a charity and want to ensure that it continues to get funding after you've passed away. 

10. WHAT IF I NO LONGER HAVE THE ASSETS I INTEND TO GIFT WHEN I DIE? 

If you gift someone a certain item, and you do not have it when you die, then the gift fails. You must be sure to make it clear in your Will that in giving the gift, that that is not an instruction to your executor to obtain the item to give. If in doubt get in touch with us to discuss this. 

If you have less assets when you pass away remember that your specific gifts like items or money are paid out first, and if you leave the balance of your estate to someone think that they will get a sizeable inheritance, but they may not because your cash gifts are too high. It may be better to leave percentages to your beneficiaries rather than a specific amount to allow for changes in your wealth over time.

Contact us if you have any questions

Disclaimer:

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer at http://hazelegal.com.au Please note that we do not endorse any of the services mentioned in this article, they merely serve as an example.

How to Future-Proof your Will and Estate

We’ve all heard the saying ‘Where’s there’s a Will… I want to be in it’, or how about, ‘where’s there’s a Will… there’s a relative’.

It’s an emotionally charged time when someone passes on, and it is those strong emotions, and often a sense of possessiveness over the deceased, their money, or being the one who grieves the most, which can bring out the worst in people, and make an already bad situation so much worse.

Why Wills get Contested

The bottom line is, that a Will may get challenged when someone feels aggrieved by the contents of the Will. Oftentimes this is fuelled by greed or resentment.

But at other times the Will can be challenged where the Will maker has not done the right thing by someone and has failed to provide for them when they should have, or the Will is not valid.

Grounds to challenge a Will

1. Lack of Testamentary Capacity and Lack of Intention

Where the Will-maker had a lack of capacity, say from dementia or deficiency of mind, any Will that they try to make can be overturned.

Likewise, if the ‘Will-maker’ signed a document that they did not intend to be a Will, even though it may look like a Will in some respects, can be overturned.

2. Duress

If someone is forced to sign a Will, that Will shall not be said to be valid, because it wasn’t the signatory’s real Will.

3. Failure to provide

This is the most common ground for the challenge to a Will. The claimant does not need to prove that the Will is invalid for any reason, just that the testator failed to provide for them, when they had a duty to do so, namely that they were dependent on the deceased.

Can we leave our money to whomever we decide?

At a very basic level we can leave our money to anyone, at least at a Common law level. But then the government stepped in after too many people were leaving their family destitute by leaving all their money to a mistress or only the male heir or perhaps even the Lost Dogs Home out of spite (not to say that leaving to charity is not a worthwhile cause.) The government had the idea, and rightly so, that it really was for the individual to provide for their own family, rather than the State having to shoulder this burden, and put a few restraints in place.

Disclaimer:

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer at http://hazelegal.com.au Please note that we do not endorse any of the services mentioned in this article, they merely serve as an example.

Who will look after your Kids?

Who will look after your kids if something were to happen to you?

This is probably one of the biggest fears a parent has - not being there for their kids.

While you cannot guarantee that you will always be around to take care of your kids, you can plan for this possibility, simply and cheaply, by nominating someone in your Will.

Not sure who to pick for the job? Firstly, it starts with a conversation with your nearest and dearest to gauge who would be willing and best suited for the job.

Still can't decide. Remember that your Will only becomes operational once you die, so just choose someone, rather than leaving it for Child Protection and foster parents to take on the role. You can change your Will as often as you like to take care of changes in anyone's circumstances.

Then you could leave your guardian the information they need to know about raising your child. Don't know where to start, then check out my book "My Life Manual: Information and Messages for my Executors and Loved Ones" to guide you through the process.

Disclaimer:

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer at http://hazelegal.com.au Please note that we do not endorse any of the services mentioned in this article, they merely serve as an example.

Who can Challenge a Will?

So, when the legislature stepped in, they stated that a family member could claim against the estate of a deceased, where that person had a morally duty to provide for the claimant.

For many years this turned into a free-for-all. Many Wills put through the Probate process were challenged by sometimes distant relatives, or people who lacked the need but who were driven by greed, and sense of entitlement or even where the Will wasn’t “fair”, in much the same way as a toddler may think it isn’t fair that their sibling got a bigger slice of cake, even though they have more than enough cake on their own plate.

The Courts were then becoming bogged down with all these claims, made worse by the fact that the legal costs of a challenge were often paid from the deceased Estate, so there was nothing to lose for many.

So again, the Legislature stepped in a tightened things’ up so that only dependents of the deceased could make a claim for support from the Estate. While this was bad news for many prospering law firms, it was good news for the busy Courts and Testators.

Preventing a Challenge

Now the question arises of who is a dependant, and who do we really have a duty to provide for? The answer to this varies in each of the States.

However, if you feel that someone could make a claim against your Estate when you are writing your Will but that you do not have a duty to leave them anything, or more than what you have, there are a few things you can do:

1. Document why you have written the Will in the way that you have;

2. Consider the use of a Trust to own your assets, but this must be set up specifically with the end in mind;

3. You could enter a Binding Financial Agreement with your Spouse or Partner. Second marriages are particularly messy in this regard;

4. Enter a Deed with your family in relation to how you intend to deal with your Estate;

5. Manage everyone’s expectations while you are still alive;

6. Gift important items while you are still alive.

7. Keeping your Will up to date and secure (such as left with your lawyer), to ensure that you’ve considered the changing needs of your family.

 Please leave your comments, or get in touch with the writer if you have any questions.

Download our FREE Guide to Testamentary Trusts and why you Absolutely Need One to protect your family and your hard earned assets. Why let the taxman or someone else get their hands on your money?

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer.