When it comes to Wills and Estates, there can be a lot of confusion as to the relevant roles and what their responsibilities are. Two common misconceptions are that your partner is automatically assigned as your Executor and Attorney, or if an Executor is appointed then they are also automatically appointed as Attorney as well. Neither of these is the case.
You can nominate someone as your Attorney, which provides a legal basis for someone to make decisions on your behalf, both financially and where your health is concerned. You will need to prepare an Enduring Power of Attorney, a legal document naming the person. The person you nominate can make these decisions either immediately or when you lose capacity, depending on how you draft the document.
What does an Executor Do?
When you are creating your will, you will be required to nominate an Executor. This can be a single person, or a number of people, but no more than 4. The main task they have is to ensure your Will is carried out and assets distributed in accordance with the Will that you signed..
The Executor of the estate will also be responsible for organising the funeral, organising and protecting the assets, paying liabilities, and defending the estate should someone wish to contest the will.
The major difference between the two roles is the responsibilities and when they come into play. An Attorney can start making decisions for you while you are still alive, whereas an Executor’s role will commence once you have passed.
You can nominate the same person to carry out both roles, but you should discuss this with that person prior to signing any documentation. . Either role is arduous and emotional so it is important that the person you have nominated agrees to step into that role.
If, by the time of your passing, you have not appointed either an Attorney or Executor, someone will be nominated for you.
For decisions about your personal health, while there is a statutory health attorney regime in Queensland, it is also possible for someone to apply to the Queensland Civil and Administrative Tribunal (QCAT) for the appointment of a Guardian for personal health matters, and administrator for financial matters. This could be someone you know personally, or the Public Trustee/Guardian.
As to an Executor of your Will, the Supreme Court has a list of who has priority to apply to be the executor of your estate. There is also a list for who will be entitled to your estate in the event that you do not have a will
Our experienced team at Marino Lawyers can assist you with Estate planning services, and provide you with more information. Please call our office in Cairns today to get started!
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