Making a will
Choosing an executor
What does an executor do?
Cases:  NZSC 114;  NZSC 116.
An executor is the person or company you choose to control and distribute your estate according to your will. Their job is to:
- identify and gather together your property, sell it if necessary, pay any debts and tax, and distribute what remains to the beneficiaries according to your will
- make sure (as far as legally possible) that your wishes, as set out in your will, are carried out
- be responsible for your body, your funeral arrangements, and your burial or cremation (they will generally follow what was said in the will or the wishes of family or friends)
- give the court all the relevant information they have about your financial affairs, and any reasons you had for your instructions in the will (for example, why you did or didn’t decide to give property to a particular person).
Regardless of what instructions you leave in your will, your executor has the final say about your burial or cremation. If tikanga Māori is relevant to you or your whānau, your executor has to take this into account when making a decision.
If someone disagrees with the executor’s decision, they can apply to the Family Court to intervene. If there is a clash between common law, the will, and/or tikanga Māori, the Court will make a case-by-case decision.
Who can be an executor?
An executor can be:
- any adult over 20 who is of sound mind (see: “Key words”), or
- a trustee company under the Trustee Companies Act 1967.
Ideally, you should choose someone who has the skills to manage your estate, and who is able to act impartially between the beneficiaries. It’s not recommended to appoint your spouse, partner or children, as they may not be impartial.
Do I have to get the person’s consent to appoint them as my executor?
It’s not legally required to get someone’s permission before appointing them as your executor. However, it’s a good idea to ask them, as they might refuse to accept the role after your death.
Can an executor also be a beneficiary?
Yes. An executor can be named in the will as a beneficiary. However, you might want to choose someone who isn’t a beneficiary so that they can remain impartial.
Does an executor get paid?
Executors can get paid for their services, but only if you provide for this in your will. If you choose a professional to be your executor (for example, a lawyer, accountant or trust company), they will generally ask for you to include pay arrangements in your will.
What happens if my executor dies before me?
If your executor dies before you, the executor’s executor becomes your executor, unless:
- you have changed your will and appointed a new executor, or
- you named a replacement executor in your will.
In the alternative, the High Court can appoint an administrator.