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Can I appoint my spouse as the Executor of my Estate?

There is a lot of miss-information adrift in the public domain on this issue, as it appears that many clients are of the view that they cannot appoint their spouse as the Executor of their Will.

The above view seems to be founded on the incorrect belief that the Master’s Office won’t allow such an appointment or because it is not possible to be an Executor as well as a beneficiary of an Estate. The unfortunate reality is that the lack of understanding on this issue in the public domain is often exploited by institutions and individuals to secure Executor appointments themselves for the purposes of financial gain, which then serves to further bolster this misconception amidst the general public at large. It’s time to set the record straight, as the above view is simply incorrect. In fact, in many cases nominating one’s spouse as Executor is both preferred and recommended, here’s why:

  1. The relationship that one has with one’s spouse is usually a long and trusting one and as a result he or she would be privy to all and any family dynamics as well as the extent and nature of the family’s assets and liabilities. Conversely, many people don’t really know the person or institution who will attend to the administration of their Estate – this relationship is often struck up over one or two consultations or through a third party;
  2. As Executor, one’s spouse will have full control over the administration of one’s Estate. Although he or she will not be permitted by the Master to actually administer the estate without confirmation of assistance by a duly qualified agent (i.e. attorney, accountant or fiduciary company), he or she is free to engage and appoint an agent of his or her own choosing under a power of attorney and if the appointed agent is not performing satisfactorily then he or she is able to terminate the mandate and avoid lengthy delays in the administration process;
  3. Executor’s fees can be negotiated upfront to ensure that they are both fair and reasonable in relation to the work to be undertaken. In some instances, this can result in significant savings for the ultimate benefit of the beneficiaries.

Your Last Will and Testament is an incredibly important document, as not only does it deal with the distribution of all your worldly belongings acquired during your lifetime, but it also impacts on the lives of your loved ones left behind, some of whom may be minor children. Given its importance, it goes without saying that when drafting your Will you should always look to engage the services of a fiduciary attorney to provide objective and specialised advice to ensure that your testamentary directives and wishes are properly documented and serve to the best interests of your family.

Lastly, remember that there really are no free lunches and the old adage that you pay for what you get certainly holds true in the realm of Will drafting.

Contributor: Judd Reid

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