Change Executor codicil
The Change Executor codicil replaces the Executors in your Will - without changing your actual Will. Your Wills stays the same, except you have a different Executor. You may wish to change the Executor for a number of reasons:
- you are no longer with your partner
- your Executor has died or got too frail to do the job
- sack the Public Trustee or State Trustee of Victoria
- remove the lawyer named as an Executor
- sack a professional trustee company. (Including: Australian Executor Trustees, National Australia Trustees and Australian Executor Trustees and Perpetual Estate Services.)
‘Free’ Public Trustee Will?
Did a nice person, from the government, offer to do you a ‘free’ Will?
Did they make your spouse and children the Executors, and then also quietly slipped in the 'Public Trustee' as an Executor as well? Whether alone or with others the Public Trustee charges to be one of your Executors. They charge a percentage of your estate. The Public Trustee makes money from being your Executor. Instead, most people appoint their family members, only, as their Executors.
The Change Executor Codicil allows your family to escape the Public Trustee and Victorian State Trustee. This is by removing the Public Trustee and putting in your own family as the Executors.
"I am from the government and I am here to help you,” said Mr Public Trustee and State Trustee. That does not sound very convincing, does it?
My children are under 18 years of age
You can appoint in your Codicil children under 18 years of age and ‘unborn children’. Just in case they are still under 18 years of age when you die then also appoint an uncle, aunt or a trusted friend as well. If your children are over 18 then the uncle and aunt can renounce the job of Executor.
1. If your children don’t get on together then you should appoint them all as executors. Contrary to popular rumour, the job of the executor is one of servant - not master. The executor can’t boss the beneficiaries. The beneficiary, however, can boss around the executors. Therefore appoint all the children if they fight.
2. If the children all love each other and get on well, then appoint them all as your executors.
Appointing all of the residuary beneficiaries avoids the perception of ‘favourites’. There is no limit to the number of Executors you appoint.
Our law firm is currently acting for an Australian deceased estate where the four Executors (the children) have never been to Australia and don’t speak English. Your children do not need to be living in your home State to be Executors.
What does an Executor do?
You need to appoint an Executor or Executors in your Will to handle your affairs after you die. Your Executor arranges the funeral, applies for Probate, pays debts and distributes your assets according to your Will. These are not normally difficult jobs and the Executor can get professional help from their accountant, financial planner and lawyer. In fact, if the children wanted to they can even give the job of Executor to the Public Trustee after you die. However, I have been practising in Estate Planning since the 1980s and I have never seen a child do that. Why waste the money?
Or should I just build a new Will from scratch?
If your Will is perfect, except for the choice of Executors then you can merely build this Codicil to update the Executors. However, the old Will may not have any tax benefits, such as 3-Generation Testamentary Trusts in your Will. There are 4 death taxes: CGT, income tax, stamp duty and 32% tax on your Superannuation going to adult children. To learn about Wills that have tax savings see here.
Need help to build your Change Executor codicil online? Telephone us. We are a national law firm so we can give legal advice.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors, Australia wide law firm
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