My executor has taken my kids

When our lawyers help clients create Wills we find clients have multiple questions. One of the primary questions clients ask when we draft Wills is who should be the executor of my Will. This is then followed by who should be the guardian of my children? Choosing the right person for these roles should not be taken lightly our goal is to try to simplify and assist with the process.

So what does my executor do?

The first thing we would inform you of is that your executor needs to be someone you trust and feel is capable of dealing with your estate. One of the roles your executor will fulfil is finding your original Will. This will be followed by navigating the legal system to apply for probate and gain access to your assets. Additionally, your executor will need to divide your assets according to your Will. This is all done whilst dealing with the loss of you!

Your executor will also hold onto your assets if you have created a trust in your Will. For example, your wish may be for assets to be held in trust until a child reaches a certain age. In addition, if you have children under 18 your Will should include a clause directing your executor to pay the necessary expenses incurred by your designated guardian whilst caring for your children. These funds will need to be from your assets held on trust.

What should I consider when deciding if my executor and guardian should be the same person?

Another question often asked by clients is whether their executor and guardian of their children should be the same person. The simple answer we give is “up to you.” We then elaborate by saying in practicality often it is easier if your executor and guardian are the same people. This is because as stated above your executor provides funds to your guardian for necessary expenses such as schooling and healthcare. If your executor and guardian are different people then your guardian will need to contact your executor for the necessary funds to be transferred. If they are the same person your guardian can access funds in the direction.

However, it should be noted in theory there is a risk in that your executor’s role in providing these funds to a guardian is to carefully consider your children’s needs to ensure the money is not misused. If they are the same person there is a risk that your guardian may be accused of spending your children’s share of the estate.

It should be noted that there is no legal requirement that forces you to make your executor and guardian the same people or for them to be different people. As mentioned the choice is up to you in our experience clients pick one person to fulfil this role. This is predominantly due to the fact clients realise the person that springs to mind for who they wish to care for their children is also someone they would trust to manage their estate and not misuse money in the trust.

Whats next?

If you have questions regarding this article or questions about Wills generally please do not hesitate to contact our office on 02 9687 8885 or contact us via the “contact us” tab on this website. Alternatively, if you wish to begin creating your Will please fill out the Will questionnaire on our website under the “Will questionnaire” tab and one of our dedicated estate lawyers will contact you.