One issue that can greatly complicate things is if the executor of the Will dies or is incapacitated. Not having an executor can complicate things and has the potential to lead to court proceedings.

The last thing you want is difficulties in dealing with your Will for your bereaved loved ones. You want the Will to be the last thing they have to worry about at such a sad time.

So, what will happen if an appointed executor is unable to fulfil their duties in handling a deceased person’s estate?

What is an executor?

An executor of a Will is the person appointed to administer the estate of the deceased.

Basically, an executor is a party charged with carrying out the instructions of a Will.

What if the executor dies?

An executor can die at two different times during the lifetime of a Will, and each situation creates its own problems.

If the executor dies before the maker of the Will or is not available

When you appoint an executor, you clearly expect them to outlive you. However, this might not be the case. It may also happen that they are not able to execute your Will for another reason such as distance or mental impairment.

The best thing to do from the outset is to appoint one or more backup executors.

If you have yet to appoint backup executors and your executor dies before you, it is best to update your Will right away with a new executor.

If you don’t appoint a new executor, another party can apply to the supreme court to become the executor. The court will normally agree to a person with a large interest in the estate becoming the executor, but it will be out of your hands and may not end up being your preferred person.

The executor dies shortly after the Willmaker

This is a more complicated situation.

Of course, if you have appointed backup executors, then the job will go down the line to the next surviving executor.

If there is no executor, then someone will need to apply to the court for Letters of Administration With the Will Annexed.

These documents will grant the applicant the authority of an executor.

Normally, the court expects that the applicant is a beneficiary of the Will, has the written consent of other beneficiaries and that the Will is legal and current.

Protecting your Will and your loved ones

There are a few tips for getting your Will right and ensuring you have no trouble with your executor:

• Appoint more than one executor: Have a preferred and a backup executor so there is less stress caused by an executor not being available.
• Review your Will regularly: You may have done your Will long ago and need to remember who you appointed as your executor. Conduct an annual review to ensure your Will is always up to date. You can confirm your executor is alive and well as part of this process
• Make sure your Will is correctly drafted: Work with a legal professional to ensure your Will is valid and has been signed by the right people, including your executor.
• Speak with your executor or update the executor: It’s worth touching base with your Will’s executor from time to time to ensure they are still comfortable with their role. If they aren’t or if you would prefer to have someone else do the job, find someone else and complete the necessary paperwork.

Is your Will up to date?

Having your Will professionally prepared and kept up to date by a lawyer who specialises in this area makes sense, particularly if your Will and estate are more complex.

When you have an up to date and legally binding Will as well as reliable executors, you will have peace of mind about your family being protected and provided for in the event of your death.

Give yourself and your family peace of mind. Reach out to Legal Affairs Lounge to start preparing your Will today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.

So, how do you update a Will after separation?

What is a Will?

Very briefly, a Will is a legal document that appoints a beneficiary or beneficiaries of your belongings and assets in the event of your death.

What if I don’t update my Will after separation?

Your Will is a legal and binding document, regardless of when you signed it. If you die before you update yours, the wishes that are legally documented will be used to distribute your assets, even if you have since changed your mind.

This can result in assets going to a person who is no longer part of your life.

How does divorce affect my Will?

Under Australian law, divorce affects a person’s Will in different ways depending on the state or territory you live in. In some circumstances, a divorce can completely nullify a Will, but this is not something you can rely on. Plus, in these cases, you could be left without a Will, which can cause its own complications.

In most states, though, a divorce will nullify any gifts or bequests appointed to a former spouse unless a judge believes it is still your wish that they should receive them.

Why update a Will after separation?

It is very important to note that while an official divorce can nullify parts of your Will, separation does not.

If you are separated but yet to be divorced, then your Will is still likely to be legally binding.

This is why you should move quickly.

Updating your Will

• Assets

The first step is to review your existing Will and identify any changes that need to be made. It’s very likely that you have appointed your former partner as an executor or beneficiary, so you need to remove them.

You also need to consider who will be responsible for distributing your assets after your death. If you have your former partner down as your executor, aim to remove them and appoint a new executor instead.

It is also important to review any trusts or other arrangements that you have in place. If you have a trust for the benefit of your former partner, you may need to modify or revoke it to ensure that your assets are properly distributed according to your wishes.

• Estate

In some cases, a separation or divorce can result in a complex estate planning situation. For example, if you have children from a previous marriage or relationship, you may need to consider how your money and assets will be distributed to ensure your children are adequately provided for. You may also need to consider how your assets will be distributed if you have a blended family.

If you have children under the age of 18, it is important to appoint a guardian in your Will. The guardian will be responsible for the care and well-being of your children if you pass away. If you have recently separated or divorced, you may need to review your choice of guardian and consider whether your former partner is still an appropriate choice.

Get support to update your Will after separation or divorce

Your needs and wishes should be priority as you go through a separation. When you work with an experienced lawyer, the process to update your Will and make sure it is legally binding should be straightforward.

Give yourself and your family peace of mind. Reach out to Legal Affairs Lounge to start preparing your Will today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.