Learn about wills

An executor is a person or organisation (NSW Trustee and Guardian or a private trustee company) responsible for managing your assets according to the directions in your Will when you pass away. 

It is important that the executor understands the legal, financial and taxation responsibilities and can stay neutral if there are any disputes. The role can be emotionally challenging and time consuming, so you need to choose your executor carefully.

Find out more about the role of and responsibilities of executors and who you can choose.

NSW Trustee and Guardian as your executor

You can choose an independent professional such as NSW Trustee and Guardian to take on the role of executor. This will reduce the burden placed onto loved ones during what may be a stressful and difficult time.

Learn more about how NSW Trustee and Guardian can act as your executor and administer your deceased estate. 

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Identifying all your assets (the things you own), either in your sole name or with someone else, is vital. It's also important to make sure your executor has your list of assets and liabilities, or at least knows where they can find the details.

This can help ensure smoother management of the estate because the executor doesn't have to search through records or make enquiries to work out what your assets and liabilities are.

A list of assets could include things like:

• property or land which may have a mortgage or security on them
• business assets
• cash and bank deposits
• shares
• valuables (artwork, jewellery, vehicles)
• other items like intellectual property, royalties, patents, and copyrights.

Assets can also be held by companies or in trusts that generally require specific advice. 

What may not be part of your estate

Sometimes things you think of as an asset aren't always part of an estate. In this situation, you cannot give them away in your Will. For example:

• in many cases, superannuation and life insurance benefits may not form part of your estate (in the case of superannuation, funds are set up as trusts, with the trustee as the legal owner of the funds)
• if you own an asset as joint tenants with someone else, the asset will pass to the surviving joint owner when you die and won't form part of your estate (it will only form part of your estate if you are the last surviving joint tenant)
• assets held in a trust are held for the trust's beneficiaries according to the rules of the trust (usually set out in a trust deed). Therefore, assets in a trust will usually not form part of your estate
• if you're a company shareholder, the assets of the company generally do not form part of your estate, so you cannot give them away in your will. However, shares you have in the company may form part of your estate and be given away in your Will. 

Overseas assets

It's highly recommended to get advice from a solicitor or organisation qualified in inheritance laws in the country where the assets are held, and have them assist you in drafting the Will, if required.

This is because the foreign country may have different:

• rules about how Wills are interpreted
• requirements for making a Will valid
• inheritance and tax laws.

Managing your financial information

As your assets and liabilities can change over time, it's a good idea to keep this list separate to your Will, but handy so it can be kept up to date more easily.

And make sure your executor has a copy of the list, or at least knows its location. 

If you have children who are under 18 years of age, it's a good idea to nominate someone in your Will to look after and make important decisions about your children if both you and their other parent passes away while they are still under 18 years of age. This person is known as a guardian.

Choosing a guardian is an important decision to make to ensure you are comfortable with who will care for your children. You can choose one or more people to care for your children as their guardian, but it requires serious thought and discussions with the person/s you are considering for the role.

A guardian who is appointed to look after your children under 18 will take on responsibilities for longer-term decisions, including:

• education
• values and religion
• health and lifestyle.

It’s important to have discussions with the person who you are asking to take on this responsibility, if the situation occurs.  

Topics to discuss include:

• living arrangements (for example, do your children move in with the guardian or does the guardian move into your home, and what happens if guardians are grandparents living in a retirement village, etc)
• education
• access to financial arrangements and support
• setting up a trust for your children in your Will.

If you and the other parent of your children are deceased and there is no guardian appointed for them under a valid Will, then anyone with an appropriate relationship, like a grandparent, aunt, uncle, sibling, step-parent or family friend can apply for guardianship of your children. In this instance, the Family Court will decide who the guardian will be.

If you want to appoint a guardian, even if their other parent is still living, then the guardian that you appoint will act jointly with that parent. If the surviving parent objects to this arrangement, then your appointed guardian may apply to the Court. 

A beneficiary is a person or entity, such as a charity, that receives a gift, benefit or share of a your estate after you die.

In considering who you want as beneficiaries, also consider who you want to receive the share of a beneficiary who dies before you. After you pass away, beneficiaries generally have rights to:

• being notified of their inclusion in a valid Will
• receiving a full copy of the Will
• knowledge of any legal proceedings, claims and contests
• being informed of any delays
• receiving their distribution within a specified time (although sometimes circumstances may occur that result in delays).

You need to decide on the gifts you want your beneficiaries to receive. There are several types of gifts, including:

• a monetary gift, but you may want to include specific wording that takes inflation into account, so that the gift doesn’t lose value over time
• a specific asset, which could be real estate, shares, a motor vehicle, furniture, jewellery or other things you own when you die
• your residual estate refers to what remains of an estate after all debts and expenses have been paid, and all specific and monetary gifts have been distributed.  

If you choose not to allocate any monetary gifts or specific assets, you make a gift of your whole estate, rather than the residual estate.  

It's important that your Will is written correctly to ensure it gives away your whole estate.

That's because any part of your estate not captured by your Will is dealt with under intestacy laws.

Gifts can also be held on trust. There are many types of trusts that can set out how and to who gifts can be distributed.

Pets are considered legal property but are usually also an important part of the family. Their ongoing welfare should be considered as part of your Will and estate planning.

You can nominate a friend or family member to look after your pet. In this situation, it's best to confirm that this person has the time and interest in carrying out their responsibilities.

You may consider leaving a sum of money to the nominated person to cover expenses or to thank them for taking on the care of your pet.

Several other options include:

• setting up a trust for ongoing care and maintenance, with funds and directions overseen by your estate’s executor
• leaving your pets as a gift to an animal shelter, animal charity or rescue service for adoption by another owner. Note, there may be a cash gift or other requirement needed in order to leave your pet for adoption, so it's worth contacting the organisation to check first.

Important things to consider when including care of your pet in your Will include:

• your pet’s expected lifespan
• upkeep costs for the rest of their life (vets, food, exercise, insurance, etc)
• ensuring you have someone reliable to look after your pet when you pass away. 

A trust is a financial arrangement where one person holds property, cash or shares on behalf of, and for the benefit of, another. Trusts are created for many reasons, including:

• ongoing support for beneficiaries such as children or grandchildren under your Will
• more tax-effective estate planning
• to benefit a charity.

Types of trusts

There are several different kinds of trusts, and it’s often a question of matching your requirements with the right one. These include trusts for:

• children and young adults up to 18 or even 25 years of age and over
• beneficiaries not able to manage their own finances or who may be vulnerable to financial exploitation
• charities
• special disability
• accommodation.

The trustee has control over the assets held by the trust so it is important that they’re honest and have both the capacity and ability to manage all aspects of the trust.

How NSW Trustee and Guardian can help

Trust administration is a complex area with financial, legal and tax implications. Your trustee has control over the assets held so it’s important to choose someone who you can guarantee to be trustworthy and who has the knowledge and skills to manage all areas of trust administration.

Many people choose to appoint a professional trustee like NSW Trustee and Guardian because we're:

• experienced with a team of solicitors, accountants, trust officers, tax and investment specialists (we're currently the trustee for over 9,000 trusts)
• independent (and not related to a beneficiaries of the trust)
• governed by legislation to use any discretionary (decision-making) powers responsibly
• experienced in understanding the needs of children, young people and people with a disability
• a history of providing a competitive return on the money we invest for you. 

We can help you to set up a trust during your Will appointment. 

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To make it easier for an executor to cancel or transfer services, make a list of your existing accounts and memberships by recording details of any:  

• bank accounts
• superannuation and life insurance policies
• utility providers (electricity, gas, water)
• club memberships
• online accounts, such as email, social media and loyalty programs
• digital records, including photos and documents stored in cloud-based services
• organisations you have a formal relationship with.

After you've listed the details, keep it separate from your Will. But tell the executor, family or friends where this list is as it can help them to manage your estate.