Codicil to remove lawyer as Executor – do it before you die

Remove lawyer as executor of your Will – with a short codicil

The remove lawyer as executor of your Will codicil removes the lawyer from your Will. This is without changing your actual Will. Your Will stays the same. Except, now, you have a different Executor named in your Codicil. The Codicil merely updates your Executors. You may wish to escape having a legal practice as your executor because:

  1. you trust your spouse and children more than you trust the law firmremove lawyer as executor of your Will codicil to remove lawyer as executor of your Will
  2. your spouse and family can administer your estate themselves – for free
  3. it is almost impossible for your family to remove the legal attorney as your executor. This is even if he is doing a bad job or overcharging
  4. the legal practice does not quote to administer the estate
  5. the solicitor charges your family whatever the solicitor thinks is fair
  6. the lawyer put pressure on you to make himself the executor. Now you want to quietly do a short codicil to remove the lawyer

What is a ‘codicil’?

A codicil merely amends your existing Will. A codicil amends, rather than replaces, your existing Will. You can either do a new Will or you can amend your Will. To amend your Will you build a codicil.

Did your Solicitor tell you to make him your Executor?

Did the lawyer drafting your Will suggest that your spouse and offspring couldn’t be the executors of your Will?  Where you told it is is a tough job? ‘You need someone you can trust’. ‘I am a lawyer and therefore impartial.’ ‘I can be a wise person and help settle disputes’.

With respect, I have been practising as an Estate Planning lawyer since 1988. I am an Adjunct Professor at Curtin University Business & Law School lecturing the Estate Planning unit at Masters level. I hold a doctoral thesis on succession planning. These comments are usually false.

The other issue I have is that the lawyer is conflicted. The lawyer charges fees to administer the estate. He charges whatever fees he deems to be reasonable. The lawyer is not required to give your family a quote. What if the lawyer overcharges? What if the lawyer does not do a good job? It is virtually impossible to remove an executor after you die. Especially one that is gaining an income from being your executor.

First marriage with only children of that marriage?

Mum and dad usually appoint each other as Executors. They then appoint their sons and daughters once both are dead.

For example, if you are leaving everything to your spouse? And then everything to your children when you are both dead? Then amend your Will so that:

  1. Your spouse is the Executor of your Will;
  2. But what if your spouse is dead or too frail to do the job? Then appoint all your offspring as the Backup Executors.

Contrary to what the legal practice suggested, most Australian married couples do this.

In that case:

  1. Mum builds a Codicil appointing Dad as the Executor. The Back up Executors are the children.
  2. Dad builds his own separate Codicil appointing Mum as the Executor. Dad’s Back up Executors are the children.

Do I tell my solicitor I have removed him as Executor?

Who you appoint as executors in your Will is your private business. You are not required to tell your solicitor. But let your new Executor’s know.

My children are under 18 years of age

You can appoint in your Codicil young children and ‘unborn children’. What if they are still too young when you die? Then also appoint an uncle, aunt or a trusted friend as well. If your children are old enough, when you die, then the uncle and aunt can renounce the job.

My children hate each other – appoint them all?

1. If your offspring don’t get on together then you should appoint them all as executors in your codicil. 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 sons and daughters if they fight.

2. Do your offspring all love each other and get on well together? Then appoint them all as your executors in your codicil.

Appointing all of the residuary beneficiaries avoids the perception of ‘favourites’. There is no limit to the number of Executors you appoint in your codicil.

Our practice currently acts for an Australian deceased estate. The four Executors (the children) have never been to Australia. They don’t speak English. Your children do not need to be living in your home State to be Executors.

What do Executors do? 

You need to appoint  Executors in your Will to handle your affairs after you die. Your Executors arrange the funeral, apply for Probate, pays debts and distributes your assets according to your Will. These are not normally difficult jobs and the Executors get professional help from their accountant, financial planner and solicitor.

Most solicitors give you an upfront quote to do the complex areas of legal work. This usually includes getting a Grant of Probate and transferring real-estate. You can shop the quote around. If the law firm is not doing a good job, in your eyes, then you can sack them. That seems much fairer.

Need help to build your codicil to remove lawyer as executor online? Telephone us as you build the codicil.

Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors, Australia wide legal practice
Mobile: 0477 796 959
Reception: 1800 141 612
Email: [email protected]

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28/07/2017

Codicil to remove lawyer as Executor – do it before you die

Remove lawyer as executor of your Will – with a short codicil The remove lawyer as executor of your Will codicil removes the lawyer from your Will. This is without changing your actual Will. Your Will stays the same. Except, now, you have a different Executor named in your Codicil. The […]