Death is one of those awkward topics that most of us avoid. No one wants to talk about death, but the truth is, the better prepared we are for death, the better it is for those we leave behind. 

The best way to be prepared, is to get your affairs in order. The first thing to do is make a will and appoint an executor. 

So just what is an executor and who should you choose?

What is an executor?

An executor is a personal representative responsible for tidying up your affairs and seeing that your wishes set out in your will are carried out. Anyone of sound mind who is 20 years or older can be appointed as your executor but ideally, it will be someone you trust. Commonly we see children or other close relatives named as executors, but you can also appoint trusted friends, colleagues, or professionals such as lawyers.

It's helpful to have at least two executors in case one of them dies before you or is unable to perform the role. Other things to consider when choosing your executor are:

• Age: you should avoid appointing a person who is likely to die before you – for example, someone elderly.
• Capability: you want someone comfortable to engage with lawyers and other professional services where needed.
• Availability: it is beneficial to appoint someone nearby or someone who can easily travel. You can appoint an overseas executor, however, it makes the process longer, more difficult, and expensive.

While not required, it is a good idea to let your executor know you are appointing them (and if more than one, who the other executor/s are). You may also like to tell them the name of the law firm that holds your will, so they know where to turn when the time comes.

What’s involved?

The primary job of your executor is to carry out the terms of your will. Carrying out the terms may include some of the following tasks:

1. Applying for probate (confirmation from the High Court that the executor is authorised to act and the will is valid);
2. Determining what your assets and liabilities are;
3. Selling a property;
4. Paying off any debts;
5. Making funeral arrangements;
6. Carrying out any special wishes such as gifts of significant items;
7. Distributing the residue (the remaining assets) to the beneficiaries of your will; and
8. Closing bank accounts.

For many of these tasks, your executor will have the helping hand of a lawyer to guide them through the process. Any costs involved such as fees for valuers, accountants, real estate, lawyers, and other advisors come out of the estate.

If any of your beneficiaries are minors, the executor may have to wait until they reach a certain age before they can distribute their share of the estate . During this time your executor must monitor the needs of the minor beneficiaries as they can make payments towards their welfare from the funds if needed. Your executor can look to the will and Trusts Act 2019 for guidance on this.

Once the final distribution of the estate has been made and there is nothing left, the job of your executor is complete.

No will, no worries?

It’s not uncommon for a person to die without a will. In fact, over half of the New Zealand population does not have a will. Without a will, there will be no executor appointed as your personal representative when you die. So, what happens then?

Essentially, one of your next of kin will need to put their hand up to be your personal representative. That person must apply to the High Court to be appointed as what is called, your administrator. An administrator has the same role as an executor – to tidy up your affairs and distribute your property. However, as you did not leave a will, you do not get to decide who gets your property. Instead, the Administration Act 1969 has a schedule that determines who the beneficiaries of your estate are depending on your family arrangements.

Not having a will can mean your administrator and beneficiaries are not who you would have chosen. The only way to protect your wishes is by recording them in your will. A will, in most circumstances, will give you the freedom to decide who deals with your property and what happens to it when you are gone.

It’s important to review your will regularly to make sure it is up to date. The better prepared we all are for death, the easier it is for those we leave behind.