An executor is the person you appoint to carry out the instructions in your Will after you pass away. As your legal personal representative, the executor manages your estate, protects your assets, pays outstanding debts, applies for probate where required and distributes your estate to the beneficiaries named in your Will. If a dispute arises during the administration of the estate, the executor also manages that process.
In New South Wales, you can appoint almost any suitable adult as the executor of your Will, including a lawyer. Many people choose a solicitor because they have extensive experience in succession law, estate administration and interpreting Wills. This experience can reduce delays, minimise mistakes and help ensure your wishes are carried out correctly.
Even if you appoint a family member or friend, they will often need legal advice throughout the estate administration process. Appointing a lawyer from the outset can therefore provide continuity and professional guidance from the beginning.
| Executor Options | Family Member or Friend | Lawyer |
|---|---|---|
| Knowledge of estate law | Usually limited | Extensive professional experience |
| Impartiality | May be affected by family relationships | Independent and objective |
| Managing legal documents | May require legal assistance | Usually manages the process directly |
| Handling disputes | Can be stressful | Experienced in dispute resolution |
| Professional fees | Generally no legal fees | May charge in accordance with the Will and applicable laws |
Why Would I Appoint a Lawyer as Executor of My Will?
If you have a complex estate, own multiple assets or expect family disagreements, appointing a lawyer as executor may be a sensible decision.
A lawyer brings legal knowledge, professionalism and independence to the role. They can administer the estate efficiently while remaining impartial if disagreements develop between beneficiaries.
An experienced estate lawyer can also:
- Interpret the terms of your Will correctly.
- Ensure your wishes are carried out according to the law.
- Apply for probate if required.
- Communicate clearly with beneficiaries throughout the administration.
- Maintain accurate financial records.
- Deal efficiently with banks, government agencies and other third parties.
Some people simply do not want to burden family members with administering their estate. Others have relatives who may not have the time, ability or confidence to perform the role. In these situations, appointing a lawyer can provide peace of mind.
You can learn more about probate and estate administration from the Supreme Court of New South Wales, which oversees probate applications.
Can Lawyers Charge for Acting as Executor?
Yes. However, strict rules govern how lawyers may charge for acting as executor.
Your Will may contain a charging clause that allows your lawyer to recover professional legal fees for obtaining probate and administering the estate. The Will may also include a clause allowing the lawyer to claim an executor’s commission for work that is not legal in nature.
If a lawyer wishes to receive executor’s commission, they generally require approval from the Court.
Lawyers must also comply with the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules and other professional obligations. They must clearly distinguish between:
- Professional legal work, for which they may charge legal fees.
- Executorial work, for which they may seek commission where permitted.
These requirements help protect clients and ensure complete transparency throughout the estate administration process.
What Must a Lawyer Tell Me Before Becoming My Executor?
If you appoint a lawyer as executor before signing your Will, they should provide certain information to you in writing.
This information should include:
- Any entitlement they may have to claim executor’s commission.
- Any provision allowing them to charge legal fees for administering your estate.
- An explanation that you may appoint another executor who may not seek executor’s commission.
Providing this information allows you to make an informed decision before appointing your executor.
The Law Society of NSW also provides information about solicitors’ professional responsibilities and ethical obligations.
Conclusion
Choosing the right executor is one of the most important decisions when preparing your Will. A lawyer can provide professional expertise, independence and experience, particularly if your estate is complex or your family circumstances are likely to create disputes.
If a lawyer accepts the appointment, they must comply with strict legal and professional obligations. They must also explain how they may charge for their services before you sign your Will.
Estate planning can be complex, but obtaining legal advice early can help ensure your wishes are properly documented and your loved ones experience fewer difficulties after your passing.
This article provides general information only and does not constitute legal advice. You should obtain professional advice that takes your individual circumstances into account.
If you would like assistance with preparing your Will, appointing an executor or planning your estate, please contact our experienced team on (02) 4987 3344 or email [email protected].