Will Executor Duties and Powers

What an executor is

An executor is the person (or people) you name in your will to carry out your wishes after you die. They are responsible for collecting and protecting your assets, paying your debts, and distributing what remains to the people and organisations named in your will. It is a role of trust: the executor acts on behalf of the estate, not for themselves.

The executor’s job in plain steps

In general terms, the job involves:

• finding and looking after the original will and any related documents;
• arranging the funeral or tangi if no one else has done so, and in line with the family’s wishes;
• working out what the estate owns and owes;
• applying for probate (the legal authority to deal with the estate) where it is needed;
• collecting assets such as bank accounts, property, shares and personal possessions;
• paying the estate’s valid debts, expenses and taxes;
• distributing the remaining estate to beneficiaries according to the will; and
• keeping clear records and giving beneficiaries appropriate information.

Duties an executor owes

Executors have duties to the estate and to the people entitled to it. In general terms, an executor should:

• act honestly and in good faith;
• act in the best interests of the estate and its beneficiaries;
• act personally — the core decisions cannot simply be handed to someone else;
• keep estate money and property separate from their own;
• take reasonable care to protect assets and keep them safe;
• act without unreasonable delay;
• avoid conflicts of interest and not benefit personally beyond what the will allows;
• pay the estate’s valid debts before distributing anything; and
• keep proper records and accounts, and be able to explain what was done.

These are general expectations, not a complete list. An executor is not expected to be perfect, but they are expected to act with reasonable care and skill — and to get professional help when an estate is complex.

What powers an executor has

Powers are the legal abilities an executor can use to do the job. In New Zealand these come from the will itself, from legislation such as the Administration Act 1969, and where necessary from the court. Typical powers include:

• collecting and selling estate assets, including property, shares and personal items;
• operating and closing bank accounts held in the deceased’s name;
• dealing with debts, mortgages and other liabilities of the estate;
• transferring assets to beneficiaries in the way the will directs;
• incurring reasonable expenses for estate administration; and
• taking legal or professional advice at the estate’s expense where appropriate.

Powers must be used for the estate’s purposes, not for the executor’s own benefit.

Probate

For many estates, the executor needs a grant of probate from the High Court before banks, companies and other organisations will deal with them. Probate confirms that the will is valid and that the executor has authority to act. Applying for probate involves lodging the original will with supporting documents, and the process usually takes a number of weeks or months — one of the reasons estate administration takes time. Small or straightforward estates may not need probate for every asset, but it is important to check what is required.

More than one executor

If a will names two or more executors, they generally must act together — decisions are made jointly unless the will says otherwise. It is common to name a backup executor in case the first choice is unable or unwilling to act.

Can an executor decline?

Being named as an executor does not force someone to take the role. A person who does not want to act can renounce (step aside), usually before they have begun to administer the estate. If an executor has already started acting, stepping aside is more complicated. This is why it is wise to ask people before naming them, and to name a backup.

Executors and conflicts

An executor can also be a beneficiary — that is normal and often expected. But an executor must not put their own interests ahead of the will or the other beneficiaries. Gifts to an executor are generally fine, and an executor who is also a beneficiary must still follow the will faithfully.

When an executor should get help

Being an executor can involve significant responsibility. Professional help is especially important when an estate includes:

• a business, company or farm;
• a family trust;
• property or assets overseas;
• Māori land or succession interests;
• debts, disputes or likely claims against the estate;
• complicated family relationships; or
• significant tax matters.

A lawyer or accountant experienced in estates can guide the executor through probate, tax and distribution. The reasonable cost of professional help is usually a proper expense of the estate.

Choosing your executor

Because the role carries real responsibility, choose someone who is organised, trustworthy and likely to be available when needed — and talk to them first. A backup executor gives you a second option if your first choice cannot act.

The bottom line

Executors hold a position of trust: they protect the estate, follow the will, and deal fairly with everyone entitled to it. Understanding the duties and powers before you name someone — or before you agree to act — makes the whole process smoother for everyone involved.