The Expert's Say: Appointing an executor

By Saw Leung Aun

The role of an executor is vital in ensuring that all your final wishes come true. In fact, choosing an executor is just as important a decision as writing the will itself. Why? Because an executor is the person specifically chosen to carry out the terms and instructions of your will.
This week's article is a series of questions and answers which will explore the appointment and roles of executors.

Why will I need to appoint an executor?
The executor is responsible for overseeing the administration of your entire estate until all assets are distributed. This person is vital because, depending on the size and value of your estate, and the age of your beneficiaries, the process of distribution and administration can be stretched over many years.
The executor will be the one who will be responsible for obtaining the Grant of Probate from the High Court by submitting various documents, including the will and death certificate. A Grant of Probate lends authority to your will and validates the authority of the executor to deal in all matters relating to your estate.
If there is a minor beneficiary or if there is a life interest, unless another trustee has been appointed in your will, your executor also becomes the trustee and will continue to administer the estate until it can be distributed. Payment to minors is usually deferred until they reach the age of majority as they cannot hold any property until they are adults.

What happens if I have written my will but have not appointed any executor?
If you have written your will but no executor has been appointed, or if the executor predeceases you, your family will have to apply to the court for a Letter of Administration (LA) with the will annexed.
Although the distribution of the estate will be according to the will and not the Distribution Act, family members will still have to go through the longer process of obtaining the LA and of appointing an administrator (person appointed by the court to administer the deceased's estate where the deceased has not left a will, or where there is a will but no executor).

Who can become an executor?
Under the Probate and Administration Act 1959, a testator (person who writes the will) can appoint up to four executors; and these people can be anyone whom the testator chooses. Also, anyone above the age of 21 is legally able to be an executor.
You may appoint your spouse, a member of the family, a relative or a close friend to be the executor in your will. However, as the tasks and responsibilities of an executor are quite extensive and time-consuming, it is vital to ensure that your chosen executor is not only suitable but also willing and able to fulfil the tasks ahead.

How do I choose the executor?
When choosing your executor, consider important factors such as asset management skills and professionalism. If the estate is large and comprises many assets and businesses, this may require the executor to direct, invest or continue these operations to enhance your estate. You will thus need to make sure your executor possesses these capabilities when appointing him or her. In addition to this, the person should be honest and reliable since your entire estate will be vested with your executor before all distribution is finally made. He/she will also need to be responsible for protecting your estate -- including valuables and collectibles like jewellery, ornaments, antiques and paintings. Thus, the person's integrity is a factor to consider as it is necessary to ensure that the funds and the assets in your estate are not misused or misappropriated.
Choosing a spouse or a family friend holding full-time jobs or attending to daily activities may not be very appropriate, as it would be difficult for them to find the time to administer your assets and businesses properly -- or even to enhance their growth and value.
Executors will also need time to understand and to garner the expertise to obtain the legal rights to execute your will so that neither unnecessary costs nor further grief are incurred or caused to the surviving kin.
Although it is quite common for persons to chose their spouse, it may be worth considering that a grieving spouse may not be in a state of mind to deal with the demanding duties and complex procedures involved. It is sometimes better to appoint another person to be an executor (instead of your spouse) or a substitute executor (in addition to your spouse), such as a corporate trustee. So, should the spouse decide not to act, then the corporate trustee can take over to ensure that the distribution is carried out efficiently and professionally.

Should I consult my intended executor before appointing him or her as such in my will?
Yes, it is imperative that you discuss your decision with the person whom you have chosen as your executor to get their consent. As explained, the tasks and responsibilities of an executor can be quite onerous. Thus, discussing this with them and getting their prior consent can avoid unnecessary, long-drawn legal problems later on should your executor renounce the executorship.
After your executor's consent, provide your family members with the executor's name, address and contact numbers. This allows them to easily contact your executor in order that your will may be immediately located and executed. This is especially important if the will outlines funeral instructions or other matters requiring urgent attention.

Will there be confidentiality issues that arise if I discuss my intentions with my chosen executor regarding his/her appointment as executor?
No, your executor needs only to be informed of your decision and the extent of his or her tasks as executor. The confidential aspects, like the contents of the will and the distribution of assets, need not be disclosed.

Are there alternatives to appointing my friend or relative as executor?
If you feel the duties of an executor are too compelling to burden family or friends, have doubts about the abilities and honesty of your potential executors, or simply cannot identify and find an appropriate executor, you can approach a will-writing professional who will be able to recommend you to a good and established trust corporation.
A trust corporation provides an excellent alternative to individual executors. Registered under the Trust Companies Act 1949, trust companies are authorised to act as executor, trustee and investment manager if required.
The advantages of using a trust corporation are: it will never be biased towards any particular party; it has perpetual existence (like it cannot pass away, unlike individuals); and investment management is part of its profession. The trust corporation will know how to effectively enhance your estate. It will also fully understand the intricacies of a will and it has the necessary knowledge and experience with the courts to ensure the smooth distribution of your estate.

1998. All rights reserved. The Edge Communications Sdn Bhd