An executor is the person or organisation you appoint to manage your estate within the terms of your will. They are responsible for ensuring that your wishes are carried out.
It’s recommended to nominate a substitute executor in case for any reason your first choice is not able or willing to perform their duties
The role of executor carries important personal responsibilities that can:
- be time consuming
- be challenging, when potentially dealing with grief if you’ve nominated a friend or relative
- require complex and objective decision making
In this situation, people often appoint a more independent executor who has experience in estate administration. This then relieves the potential burden of the role of executor being placed on a family member or friend.
You can appoint NSW Trustee & Guardian to act as executor of your will. They are the state's largest executor of wills with specialist legal, finance, property and tax experts to assist.
A testamentary guardian is an adult designated to be responsible for the welfare and upbringing of minor children (under 18 years). A guardian can be nominated to act:
- if both parents die
- or jointly with the surviving parent
The arrangement continues until the child turns 18.
Being appointed a guardian carries a lot of responsibility. You’ll want to talk to the prospective guardian, as well as children old enough to understand the situation. This could avert any potential misunderstandings or conflict.
A guardian generally makes decisions on:
- day-to-day responsibility for the children
- where they live and education choices
- health, religious and welfare directions
If a trust is set up for the children, it's recommended the role of guardian and trustee be separate to avoid any potential issues of financial conflict.
Parents may also wish to provide for alternative guardians who can step in if their first choice is unable or unwilling to take on the role at the time of their death.
Identifying all your assets, either in your own 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 the list is located.
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
- 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:
- some superannuation and life insurance benefits may not form part of your estate
- 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
Because the information on this website is general in nature and does not cover everything you need to know, please read this important legal notice. In addition, you should consider getting professional advice to ensure you understand what things you can and can’t give away in your will.
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
TIP: Managing your list of assets
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.
You need to decide on the gifts you want your beneficiaries to receive. There are several types of gifts, including:
- a monetary gift, however, you may want to include specific wording that takes account of inflation 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 numerous types of trusts that can set out how and to whom gifts can be distributed.
Because the information on this website is general in nature and does not cover everything you need to know, please read this important legal notice. In addition, you should consider getting professional advice to ensure that your intentions for allocating gifts are properly understood and documented.
Pets are considered legal property, but are often treated like family. As such, their ongoing welfare should be considered as part of your will and estate planning.
However, because animals do not have the same legal status as humans, there are several options available to ensure your pets are properly taken care of.
Nominating a friend or family member
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 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.
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
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
- special disability
Because the information on this website is general in nature and does not cover everything you need to know, please read this important legal notice. In addition, you should consider getting professional advice to find out if a trust is suited to your circumstances.
The trustee has control over the assets held by the trust so it is important that they are honest, and have both the capacity and ability to manage all aspects of the trust
Planning a funeral or memorial service before your death can help reduce stress for friends and family when they are grieving. Decisions you can make ahead of time include:
- whether you want a burial, cremation or a service specific to any cultural or religious custom
- organising payment in advance
- any specific readings, speakers or music
Write down your plans and share them with close family and friends so that people know what you want for your funeral or memorial service
Informing family and friends of these preferences can help those organising your service to:
- make more confident decisions
- deal with different opinions
- represent your true wishes
While you can include your funeral wishes in your will, it's best if they're also shared and communicated separately because the will is often not read or seen until after the funeral or memorial service.
Paying for a funeral
You can organise to pay for a funeral in several ways, including:
- prepaid funerals (kept with a funeral home)
- funeral insurance
In many cases, funeral costs can be paid from the assets of your estate, often from your bank account. In other circumstances, a family member or loved one will pay and then be reimbursed from your estate assets, provided there are sufficient assets to cover the funeral costs.
ASIC's Moneysmart has more information about paying for a funeral.
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.
Death, superannuation and taxes
There may be tax implications for the people you nominate as beneficiaries.
For example, a super benefit could pass to a spouse tax-free but may be taxable in the hands of adult children.
Additionally, the entitlement of a beneficiary might impact their rights to social security payments.