How to set your Executor up for success

In this presentation, Wills and Estates lawyer Stacey Bell turns her attention to the practical side of what happens after we’re gone, and what we can do right now to make life easier for the people we appoint as executors.

Stacey walks through the full range of executor duties, from planning a funeral and locating the will to applying for probate, managing tax obligations and communicating with beneficiaries. She explains what makes a good executor, how to choose the right person, and why the conversations and letters we leave behind can be just as important as the legal documents themselves.

Meet Stacey Bell

Stacey Bell is a Wills and Estates lawyer with a practical, thoughtful approach to helping families plan, protect their wishes and safeguard the people they love.

Transcription

Please note that the transcription provided may contain occasional errors.

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Good morning, everyone. I’d just like to start by saying thank you to Imagine More for having me back for my second talk, but also for my second year presenting at a conference.

So I just wanted to get on my soapbox for one moment, and something I didn’t talk about yesterday is charitable trusts that you can set up in your wills. And I was just thinking what just this room of people could do in terms of funding for any type of charity or not-for-profit that speaks to you if you just added a little bit of a gift in your will. So that’s another way that we could keep the movement going.

That’s not what I’m talking about today.

So today, I’m just talking about how to set your executor up for success and what the other side of everything we’re talking about today looks like, but very much from the legal perspective. So again, I’ve got to start with everything that I’m talking about today doesn’t constitute legal advice. I’m a lawyer, but I’m not your lawyer. So nothing that I’m talking about today is going to be taking into consideration any of your personal circumstances. And if you rely on anything I’ve talked about today, at least check it with someone who may or may not hold a practising certificate, just to make sure that it is appropriate for you.

So first, I thought I’d talk about what an executor actually does. And you’ll note that throughout this presentation, I’m talking about how to set up your executor for success because the single easiest thing that you can do to set up your family to have an easier time when you pass is to have a will. That is, it doesn’t need to be the best, but even if it is not what you want, it is better than not having anything at all.

But in terms of the overarching range of duties that your executor will have to do, the first thing they have to do is plan your funeral, which may or may not involve a party. And I always talk about it in the context of party planning, because it might be a wake, it might be a funeral, you might very explicitly not want those things and you might want a celebration of life. The words don’t really matter, but there is generally some sort of coming together of your family members to celebrate the life that has been lived.

And that’s the first point of call that your executor will have to do. They are the person that has the legal responsibility of signing off on those really important forms that come after someone passes, usually that is done with a funeral director. From there, there’s a bunch of cleaning up that needs to happen, and that might be going through your desk, your office, your home, to find all the little bits and pieces that they will need to administer your estate in accordance with your will.

Now, from there, knowing where your will is and I know I talked about this a little bit yesterday, but knowing where the original copy of your will is, is the most important part of being able to administer your estate without any issues. But even if you’ve got a copy at home and it says, you know, the original is with insert person here, that is good enough. We just need to know where to start looking.

From there, when we’ve got a solid understanding of what we’re actually working with and what we need to do, then we’ll decide whether or not we need to apply for probate. In most cases, probate is necessary. If anything, just for protection for the people who are going to be stepping into your shoes to do what needs to be done.

But more often, most people will own property, or they’ll own assets that are significant enough in nature that the institutions that we will end up dealing with will require some sort of court order, which is what a grant of probate is, in order to take instructions from them and to recognise their authority to be dealing with assets that aren’t theirs.

We always talk about the role of the executor as having to administer your estate in accordance with the terms of your will. Your will can be really basic or vague in terms of what actually should happen, and I’ll see a lot of cases where, “Give everything to my spouse, and if my spouse doesn’t survive me, then divide it equally between my children.” That is still the terms of your will.

A lot of clients will ask me, ” What do we need to do? We want to do this, can we do that?” If it’s not in the will, your executor cannot follow those instructions. They are very strictly bound by what is actually in writing in that document. Now, there are other documents I’ll talk about later that might influence how they make decisions, but in terms of investment options or specific gifts to certain beneficiaries or certain trusts that you might want to set up, if it is not in the will, it is not an available option for your executor to do. So that’s where the future planning, making sure your document actually reflects your intentions is quite important.

When it comes to tax, the single most frustrating part of the administration side of things is having to lodge tax returns for someone who you don’t know A, what their TFN was, what their normal deductions were, if their tax returns are up to date. So if not for your family, do it for the poor practitioner that will have to do it with them.

Please, please, please keep your tax returns up to date. Your executor will also have the responsibility of doing all of those forms. And there’s that constant risk as well that if we don’t deal with tax, your executor will be personally held responsible for any tax liabilities that you have not paid or haven’t been tended to. So, where this person is stepping up to do you a really significant favour, let’s not stick them with a tax bill.

The next important part, for people who do have wills in the room, you might say that they will, I appoint my insert person here to be my executor and trustee. Now, they are the same person, they’re just different hats. What that’s referring to is your executor as a person… is the part of the role from date of death up until the point in the estate administration process where I can go here are the assets, here are the liabilities, and this is what I’ve got available to divide in whatever distribution set up that you have.

Once I can do that basic little maths, that’s when your estate is said to be determined, and that’s where they take their executor hat off, and they put their trustee hat on. That person will also become the trustee for any trusts that are set up in your will.

So that’s where it becomes really important to think about the long-term role of your executor. It isn’t just at the beginning. We can obviously decide that there might be alternate trustees for any specific trusts. But your estate is a type of trust as well. So it’s important to think about what they’ll be doing long term in that context.

But because your executor becomes, you might hear the words, ‘legal personal representative of your estate’, they become the physical embodiment of you and your estate in the human realm. So in terms, if there’s any disputes that arise later in administering your estate, they are the person that needs to have all the knowledge that you had in your brain, that you had as a parent, as a sister – in terms of any role that you might have – they need to know those things because if someone challenges your will, contests it for whatever reason, or if there is any disputes amongst the beneficiaries about a specific gift, for example, they need to know why you made that gift, why you provided or didn’t provide for that person…

They need to know the background of how you came to that decision. So a lot of that can be done before you pass away. I’ll always talk about having an awkward conversation with your executor over a bottle of red. But that can also be done in letters to your executor.

“These are the reasons why I don’t talk to my other children anymore.” “Here’s the reason why the other parent of this particular person shouldn’t be involved in any of the decision-making process.” Even though it’s vulnerable and it’s yucky, and it sucks to write, it sucks to read, that’s really important information for your executor to have.

Because, in the event of a dispute from the legal perspective, the person that I need evidence from as to why they did certain things, is you, is the testator. And if you’re not around anymore to tell me that, your executor is the next best thing. So a lot of this is going to be setting them up with the information and the documents they need to do a good job.

So, in a very legal context, your executor will have prescribed duties. And then it’s not so much a hero duty, but they’re very much responsibilities that they cannot not comply with.

So the first one is maintaining records of everything that they’re doing in the context of the administration of your estate. Now if they’re working with a lawyer, for example, a lot of that will be the responsibility of the lawyer so that we don’t get sued if something goes wrong, but also to make sure to make your job or the executor’s job a lot easier in terms of communication with the banks, communication with the beneficiaries, what we’ve done with money in, money out, and how we’ve come to the decision of how we administered the estate together.

They’ll have the responsibility of securing any assets, so if there’s property we need to make sure that it’s insured, we need to make sure that we know where the keys are. If there is a safe, we need to know the code or where the keys are. We need to make sure that if there is a car that it’s not being driven, or if it needs to be driven for whatever reason, that we notify the insurance company that the person who had that insurance policy has passed. The insurance companies don’t care as long as they get paid, but they just need to know these things.

The executor also needs to avoid any conflicts of interest, and they also need to make sure that they are not, I’ve skipped a step, but the fiduciary obligation. They need to make sure that they are not preferring the interests of any one beneficiary over the others. And it’s sometimes a little bit of a difficult position to be in if they are also a beneficiary.

Now, a beneficiary can most definitely be an executor. And this conflict of interest is a situation in this area of law comes up a lot because the type of person that you will trust implicitly to be in this role is more often than not someone who has a vested interest in making sure that things are going to work out okay.

Now I’ll always talk about how sometimes you want your executor to have skin in the game because it means that they’ve got an incentive to get the administration done sooner rather than later so they can get their inheritance. But where they have to make decisions that may or may not affect how certain assets are distributed or how they might be sold, you need to be able to trust them to make decisions that they might not benefit from, or that might be to their detriment, knowing that it’s for the greater good of all of the other beneficiaries.

There is also an obligation to maximise the value of the estate. This is one that really only comes up in the context of disputes, where sometimes we need to make commercial decisions about whether or not we sell property, at what price that we sell property, when we sell shares, how we sell shares, what extent we go into investigating certain allegations. We have to make those commercial decisions.

And we need to make sure that when we are dealing with those assets, that we are again dealing with them for the best interest of the beneficiaries. But what that looks like is going to be different for every family.

So again, if you’re telling your executor, here’s the last valuation for the house, or when you’re dealing with real estate agents, “Don’t pick this firm.” Whatever that might be, so that they can have a baseline knowledge of what they should be doing, the better off you’ll be.

Now, fiduciary obligation is a big legalese term, but it’s essentially just when there is someone in a position of trust over property that doesn’t belong to them for the benefit of someone else. But it’s also, you’ll hear it in the context of duty of care towards a teacher to a student, a parent to a child. It’s essentially just when there is someone in a position of trust.

In the context of being an executor and a trustee, you will have care and control of property that does not belong to you. And that is where having the appropriate records to justify why you’ve done what you’ve done and the basis on how you’ve reached any decisions is going to be really important because you have that obligation to communicate transparently with the beneficiaries, and you need to be able to back up why you’ve done certain things.

And that gets really difficult in the context of disputes.

When we’re talking about how we can choose executors, for example, when you’re looking at the range of roles that they’ll have, you can already see that there’s a lot of complexities that come in just from the get-go.

So when I’m talking with my clients, and I understand that we don’t like the word clients, but that’s all I’ve got. It’s a different thing, I’m allowed. A lot of parents will inherently choose their children because they’re the next generation; that’s a lot of the philosophy behind it.

I would like to take that parent guilt and throw it out the door. Because your children might not be the best people for the job. When you’re thinking about what an executor has to do for you, it’s very much you’ve got a job description and you’ve got a bunch of candidates and you’ve got to be really cold and transactional about it.

There’s a wide range of complex responsibilities that your executor will have. They will be, they need to make financial decisions, they need to make legal decisions, they need to make tax decisions, they become a counsellor for the rest of your family, they have to be a party planner, they have to be quite organised, they need to have the time to spend doing this job. So already we’ve got a very high threshold of what a good executor will look like.

Now I know that sometimes you just don’t have that many people that you trust to be in that role, and then it becomes the worst best-case scenario. But in terms of the trust in your executors to do what you would have done. So we talk about administering your estate in accordance with the terms of your will. Your will is inherently going to be your wishes, and if they don’t know that or if you don’t trust them to follow through what your vision is or what the plan is for your estate implicitly, then I would say that they are not an appropriate person to be appointed.

If they don’t know you and the people that they will be administering the estate for, they are also not an appropriate person to be an executor. They might be really good with money, they might be able to make really good decisions under pressure, but if they don’t know the people that they are working for, that comes with its risk as well.

But the other thing will be that you might see that the people that you do have available for you are too close to the situation. They won’t be able to see things with enough distance so that they can look at things in an objective way.

I’m seeing a lot of people appointing someone in the family and then someone completely independent to make sure that there is someone who is going to be able to do the job, but someone who knows what is going to be. And that’s the best thing as well. It doesn’t need to be only one person; it can be a range of people.

Now this is where I’ll always say that there can be too many chefs in the kitchen, and they need to be able to get along. When there’s grief, and there’s money and spite involved, people will do very strange things, and I can have a perfectly fully grown adult with no problems whatsoever in front of me. But more often than not, I will be dealing with a teenager that has just lost their parent or a sibling that’s just lost their sibling. Anything, any of that ingrained hurt that they have in their heart will come out and will become really difficult for them to administer the estate. And if there’s a sibling that is going through that same process, it can make my job very interesting.

But in terms of making sure that you guys can make really good decisions about who your executor can be.

Look at the last time that, if you might think you had two people, look at the last time they had a fight. How did that go down? Did they talk through it? Did they work it out? Or do they not talk anymore?

Or if they don’t know each other, when you were talking about who can we bring into the Circle, introduce them. They might be very suited to the roles, but they don’t know each other yet. Here’s each other’s numbers, let’s go out to coffee or an awkward bottle of red and let’s get that all sorted.

One of the paramount responsibilities of an executor is going to be to defend and propound the terms of the will. Now, they don’t have to agree what’s in the will, but they have to take on the responsibility that that is your last will and that is your wishes, and this is what we’re going to do.

I’ve had matters in the past where with everything in their being that they wanted to fulfil the wishes of their deceased person but they didn’t agree with it, they didn’t want to and they had to either renounce their appointment because they just couldn’t go through with the emotional toll that was going to be involved or they had to be removed and removing an executor or organising for the passover or an executor is not a cheap process, it is an emotionally taxing process and it is very expensive to do. So if you are putting any spicy clauses in your wills that may or may not detrimentally affect the person who is supposed to give rise to those wishes, we need to think through is that person going to be the best person for the job.

The other thing is, are they a safe person for your beneficiaries? For whatever reason, your executor will have certain responsibilities to communicate with the beneficiaries, and a lot of my job becomes being that person for the beneficiaries because they do not talk with the executor. So it’s fun for me because I get to spend all day on the phone, but again, I have to charge for that time; I have to be quite strict in how that conversation goes.

And I’ve had situations where I’ve had to tell people that their loved one had passed because the executor did not want to do that. So we need to be talking about, is that person going to be psychologically and emotionally safe for your beneficiaries, on top of all their legal responsibilities that they cannot delegate?

All right, that’s the horror stories. But let’s figure out how we can set them up, but in a good way.

In some of the conversations I had yesterday, we were talking about we need a list. We have toyed with this idea many, many times, and there’s really not one size fits all list, because whatever you have, any accountants that you might have now, any interests that you might have right now, that is what your executor needs to know about. That is going to be different for everyone.

So again, I cannot stress enough, your original will is the most important document that you must bring with you to see a solicitor. But if there is any significant changes in your wills over the years, it is really useful to have a copy of your previous wills and any file notes that you might have made or any letters from your solicitor as to why you made those changes, especially if you’re going from providing from A, B, C to only A and B. We need to know why you cut C out.

Because if that person comes knocking, we need to have the information as to why you did that. And also, I’m nosy, and I want to know. The other thing that I deal with more often than I like to deal with is superannuation funds or life insurance policies will ask for ID for the deceased person. So the best thing you can do for yourself and your family member with disability is maintaining appropriate government ID.

Now, I’ve had some clients look at me funny and say, ” Oh, clearly I’m over the age of 18. I don’t need a proof-of-age card.” It’s not really what it’s about, although it’s nice to be asked for ID when you clearly don’t look like you’re under the age of 25 anymore. But being able to prove who that person was and tying it to the will that we are trying to propound to link those two things together is a really important part, and when we don’t have a proof of age card, birth certificate, a Medicare card, proof of age, literally anything that has your name, your date of birth… Your death certificate does not count as identification, by the way, that is something I learned very early on in the hard way. But maintaining appropriate identification for you and your beneficiaries is really important.

The background story that I’ll tell you is a lot of old superannuation funds, you just got to fill in a form, and that was it, it wasn’t all digital. And most people couldn’t read cursive, and you’ll be very interested to see what your superfund thinks your middle name or your date of birth is.

It’s really important to keep up-to-date information about your assets. Now, if you’ve got an accountant or a financial advisor, you know, every year they’ll send you a statement of advice, just print that. That is an excellent place to start. But you can also take screenshots of your bank account details.

But a simple list of, “I bank with St. George,” or, “These are the banks I have accounts with.” I would really step away from writing down your passwords anywhere. There’s a great debate as to how much access you should give your executors before you’ve passed away. And I always take the position that I live in fear of things going wrong, so don’t give your passwords to anyone.

But you can possibly trust them with a password to your phone, which then gives them access to everything else. If anything, just to see what apps for internet banking you have on your phone, for example. We just need to know where to start. And then we can send a copy of your death certificate and your will to the relevant people and get them to give us the details.

But I have had matters where the widower did not know anything, and it got to the point where I was like, “Can you just provide me with your wallet, and we’ll start looking at what bank cards you have in there.” And so, “I only got pocket money. I don’t know, I don’t have any bank cards.” And so I had to write to every single financial institution in Australia asking them if they had accounts for the deceased person. The spreadsheet of tracking all of those inquiries was quite impressive if I do say so myself, but it was not fun for anyone involved.

If you own shares, the most difficult part of dealing with shares is obtaining your SRN or your HIN. Most institutions are very hesitant to give them out, and it costs your executor and your estate to make an inquiry about, with any share registry, about those numbers.

They’re very, very peculiar to you, and they’re very difficult to get a hold of. So you might have a little black book with those in them, but it could be as simple as just keeping the statement of shares or the registry number, just any kind of statement that has that detail on it, just so that we don’t have to pay someone else to obtain that information later.

With your superannuation funds, we need to know where the fund is held, if you have it at all. If you have a binding death benefit nomination in place or if you have a nomination that isn’t binding, we need to know what you wanted to do with your superannuation. You’ll hear about estate assets, so things that can be governed by your will and the very non-creatively named non-estate assets.

Superannuation is one of those. You don’t own your superannuation. It gets administered in accordance with a completely different set of legislation, which is the bane of my existence, but that is a common theme of the last two days.

We need to know what you wanted to do. Is there a spouse that we need to provide for? Are we very explicitly not providing for the spouse? Have you made a pension for your family member, for example? Or is it just to be paid as a lump sum to your estate? Or are we very specifically paying it directly to the beneficiaries so it’s not part of the estate, so that it couldn’t be captured by any contesting or challenging of that will? We need to know what your plan was.

If you have cryptocurrency, we need to know where the wallet is, and we need to know the password. Because in most cases, you only get 10 shots, and if we mess it up, they’re gone. And there is a lot of continuing professional development courses that I’ve had to attend over the last three years, that is just talking about how we just don’t have a way to deal with this. Our laws have not caught up. Your executor will have very little recognition on an international, decentralised platform. “Here’s my grant of probate. Give me the information.” They’ll say, “Thank you very much. No, we’re not talking to you.” There’s no one to talk to. That’s the whole point. So we need to know where your wallet is. The crypto wallet. Although your actual wallet is also useful.

If you have any insurance policies, they could be life insurance, they could be home and contents insurance, they could be car insurance. If you have insurances in place and you’ve gone through the trouble of reading the terms and conditions and you’ve gone through the exercise of making sure it was right for your circumstances, we need to know that, because if we don’t know that it’s insured, the first thing I will say in you know, the deceased estate first appointment is, is the house insured? If it burns down between now and then, we’re stuffed because that can be a very big part of your estate plan. You might have created this beautiful document that creates a trust over the house, but if it burns it down because it’s not insured, we’re up the river and we’re missing paddles.

If you have a pension, we need to be able to stop that pension as soon as possible after you’ve passed, because any pension payments that are made after death will have to be recovered. And the longer that we let that go, they’ll, depending on who it is, they might be able to garnish any of that and just take it all back, but we might also have a gigantic lump sum of money that we need to pay back. And whilst it is just treated as a liability over your estate, I have to then seek instructions of paying back Centrelink. And whilst everyone understands that they have to, no one likes saying yes to that.

If you have loaned money to any of your beneficiaries and it is not intended to be an early inheritance, your executor needs to know that as well. Ideally, it needs to be documented, and it needs to be kept up to date because there are certain limitation periods on how those contracts will work. And if it is not brought to the attention of your executor and it’s not in writing, the imprint is going to be it’s a gift or it wasn’t supposed to be an early inheritance, and the statute of limitations on that contract will run out, and you might have done everything that you need to do to protect your other children, for example. But that all falls apart because we don’t have the appropriate documentation that your executor can rely upon in a legal context.

If you have trusts that you’ve set up during your lifetime, the original trust deed is the most important document and any amending deeds that you might have later. Those are very important documents. Now, I spend more often than I’d like to deal with calling every accountant that this person has ever dealt with asking and begging for them, please tell me that you have the original trust deed.

I’ve got it from 1989. No one knows where the original is. And a lot of people will have copies, but a lot of people think, oh, no, I don’t have it. You had it. No, they don’t have it. I have it. And it goes in circles.

The consequences of not having the original trust deed means that your executor will need to make an application to the court for a rectification order or to seek a declaration that a copy is now the original. That is, again, that is a day or two in court if it’s contested for whatever reason. But it is still at least your solicitor, give or take a barrister, sitting in court for a couple of hours saying, ” This is all we’ve got, no one’s arguing over it. Dear judge, please make the order that we need so that we can rely upon that.” And it’s a waste of everyone’s time. But I’ll do it. There’s nothing I can’t fix, but that’s just something that I can help you avoid.

Your TFN is also something that’s really important because in order to deal with the ATO, we need to tell them who we’re dealing with. And if we don’t have your TFN, that just adds delays because we have to make an initial inquiry with the ATO to receive that in the first place. And I don’t know if you’ve had to make a request of the ATO in time recently. It is not a quick process. So again, just everything that you have, that is important to you, we need to know about.

In terms of the family dynamics that we might be dealing with, we need to know if there is a vision statement for you, for your family member with disability, we need to know where that’s kept. We need to know what the plan is. Because your will might just say, each of my children have this type of trust, and then that’s just what the will says. Because you might have chosen a more flexible approach so that your executor could make a decision that was right for the beneficiaries at the time. But if you don’t know what the plan was for a decision that’s right for them at the time, you will be stuck with a basic trust that may or may not just have cash. We won’t be able to give rise to your wishes if we don’t know what they are.

The other thing that I talk about a lot with my clients is I ask them to bring a picture of the person, or I will stalk them until I find one online. Because I like to know who I’m dealing with. I’ll ask about the family. For me, again, I’m nosy, and I want to know. But it also, when we’re administering your estate, we need to know who you were. It’s important to your family to know that. But the problem that I see, this is not legal advice, it’s human advice. But in terms of how your story is going to be carried on, that’s really important.

And recording your story in your childhood and what was important to you can be very important in the state litigation context, but it’s also important for your family to make sure that your story is upheld. I say that, knowing as well that my mother has spent probably the last 15 years struggling through ancestry.com trying to find where everything is, where everyone was, but you can just write that story down. And you can always put that in a little letter to your executor, or again, the bottle of wine example comes out.

When it comes time to the legal side of things, your executor and hopefully their solicitor will be able to manage all of that. But we also need to know if there is a caring committee, for example? Is there other people that we should be liaising with in terms of dividing and conquering what needs to happen? If we don’t know who they are, we don’t know to call them. There might be in your will that these are the people that we need to call. But again, if your executor doesn’t know them, or we don’t have up-to-date details, you’ve prepared for the marathon, and then you’ve dipped right before the finish line.

The other uncomfortable conversation that you need to have with your executor or with your solicitor when you’re preparing your will is where are the conflicts going to arise? And that could be between siblings, that could be between the parents of one of the children, it could be because there are ex-partners or girlfriends that the kids don’t know about. I have heard it all. But we need to know.

A lot of my job becomes proactively managing those disputes, and I have a great amount of fun putting the dominoes in the right order so that everything falls in the way that I want them to and avoiding all of those conflicts. My clients will never see the benefit of that hard work, but that’s in terms of, you know, I can’t prove a negative. But if I don’t know that those things are going to be a problem, I don’t know how to avoid them.

I’ve said ‘spicy’ in terms of if there’s anything your executive needs to know. I’ve had to break the news to a widow that someone was making a claim on her husband’s estate because there was a girlfriend of 17 years that she did not know about. I’ve had to ask people if there’s any children that their spouses don’t know about in an estate planning context.

And I will ask that in front of both of them, and I’ll watch the facial expressions. And normally, if one of them is acting a little bit shady, I can’t act for both of those people. So I have to ask those questions. So if you ever work with me and I’m asking really loaded questions, you know what I’m doing.

But it can be anything. The secret boyfriend and the secret girlfriend come up a lot. Children that another spouse doesn’t know about also come up a lot.

But it could also be that you have a secret investment that the spouse, that isn’t your executor doesn’t know about, and it’s only for this child, and you don’t want me to tell them. Give or take the circumstances, I can hide things, but more often than not, we need to be upfront and transparent; there are ways of maintaining your privacy in that context. But again, if I don’t know about it, it’s going to come out.

When you’re administering an estate, there’s a really wide range of things that you end up needing to deal with. But if you have an accountant, if you have a financial advisor, if you have a solicitor, if there’s a social worker involved, and you like them enough that you want your executor to be able to rely on them, give them their business card or here’s a printout of their website, or here’s their name and this is where they were at the time.

Having the appropriate support for your executor, if they don’t have the asset information, but they know who knows that information, that’s the next best step. I often see that someone will continue to engage an accountant or a solicitor because that was just the family solicitor. You don’t have to like the professional, but you have to like their advice. And a lot of professional services is all about the vibes and how you get along with that person. So you don’t have to continue using those people if you don’t get along with them. And I will absolve you of any of that guilt.

Now, a lot of the non-legal things that become legal disputes are in those… I can’t get away from the wishy-washy stuff now, but your legacy and your family story is inherently where all the legal problems come from. Anything to do with assets or shares or anything, I can fix that; that’s easy. But I cannot massage or sort out interpersonal conflicts if your executor doesn’t know about it or if they haven’t been managed ahead of time.

Now, there are certain circumstances where you just can’t do that, and that’s just going to be how the cookie crumbles. But if your executor knows why you made certain decisions, how you came to those decisions, and you’ve written them down, it can be a text message that your executor screenshots, I don’t care, it just needs to be in writing.

If you’ve gone through the trouble of creating or using some of the fantastic resources that are outside in terms of planning for the vision for your family member with disability, store that with your will. Even if it’s like the second last version, something is better than nothing. And I will encourage you to store anything that is important to you with your will.

That can be your checklist of where everything is, it can be your vision statement, it can be ‘everything you need to know about me’, it can be… as long as it’s not explosive, most firms will let you store it in their safe custody packets. But even if it’s in the bottom drawer in the kitchen where everything seems to end up, that’s a good spot as anything else, if your executor will know to look there. So wherever that would be, that’s where you should store that stuff.

I also encourage people to write thank-you letters to your executor because it’s not a fun job. In a lot of cases, I will tell people that any of the legal side of things, the solicitor can do it for them. But in terms of maximising the value of the estate, a lot of people will feel like they have to do it themselves because they were appointed and it’s their responsibility.

You can delegate a lot of this mental load to the professionals. And I encourage all of you to give your family permission to do that. You don’t know the legal side of things, but we don’t know the family side of things. So your executor and your solicitor become a team to give rise to your wishes.

And so it can be a thank you, can be I love you, can be, you know, “I hate you, and that’s why I made you my executor”, whatever it is. Just a little something so that they feel heard and acknowledged in that context. So that’s probably the extent of what I thought I was going to talk about in that context, but I wanted to address some of the questions that I had from the talk yesterday.

A lot of them were centred around can someone with an intellectual disability make a will? And I will tell anyone, everyone over the age of 18, regardless of whatever capacity assessments other people’s opinions might hold, the starting position is everyone can make a will until a practitioner thinks that they are not willing to bet their practising certificate on that particular will.

In terms of the threshold that I was talking about yesterday, about testamentary capacity, it is not for you to have to prove or to coach your family member to be able to pass that test; that’s the practitioner’s job to ask the questions in a way that we can get the instructions that we need. But if you are engaging in some of the fantastic work that Imagine More is doing in building capacity, so they are able to answer those questions, they are able to manage, not even manage finances, but have an idea about what their finances are, I can then work with that.

Trusts are not the end-all and be-all in terms of protecting your assets for your beneficiaries. Centrelink rules change all the time, social services rules change all the time, tax rules change all the time. So, the trusts that are set up in your will need to be revisited. If anything, just a quick call to your solicitor that says, you know, does anything need to change?

In terms of the trustees, if you appoint more than one, if one of them passes away, for example, your will should deal with that because there are ways in the legislation for trustees to resign or be appointed or how you deal with the change of trustees. But in that context, you’re relying on legislation that may or may not reflect what your wishes were. Especially when there is more than one trustee, there’s then limitations on the next iteration of that trustee role, what that can look like.

So I always encourage people that if there are people that you do not want in any way, shape or form to be involved in the trusteeship of your trusts, we should be specifically excluding them. The more barriers that we put in between the trust and those people, the harder it will be for them to end up in that role.

Now a lot of what we do in the estate planning context is proactive litigation. So we have to ask these difficult questions so we know what to put in the will.

One of the questions as well was how to know that you’re dealing with someone that knows what they’re doing. And I’ll be the first to tell you that does not have to be me, I’m not a unicorn. But you need to be looking for solicitors who practise regularly in this area.

Ideally, someone who exclusively works in wills and estates, because that is someone that you know that has to keep up to date, because that’s what they do all day, every day. Ideally, someone who does estate planning and litigation because they inform each other. But a lot of firms won’t do both for cash-flow reasons and for practice reasons. There’s a lot of reasons why they won’t do both. But someone who is really engaged in this area of law and who has contacts, if they don’t know the answer, that they know people who do.

There are some questions about the difference between enduring powers of attorney in the ACT and the various different versions in different states and territories. The one that I had in front of me was an enduring guardianship question. Now, the ACT has one form, just an enduring power of attorney. New South Wales will have enduring powers of attorney and appointments of enduring guardian.

They all just refer to the types of decisions that someone can make for someone else. The ACT, you’ve got all the decisions: money, lifestyle, medical and medical research. The difference with an enduring guardian is that that’s just lifestyle and medical, and the power of attorney is financial powers only.

But Victoria will have an ‘Appointment of medical decision maker’. I’m pretty sure Queensland just has ‘Enduring powers of attorney’. But each state will have their own version. They’re all the same. They just refer to what they’re actually dealing with.