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Individual rights & freedoms

Making a will

Choosing an executor

What does an executor do?

Cases: [2022] NZSC 114; [2012] 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?

Administration Act 1969, ss 13, 63

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.

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.

Did this answer your question?


Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

New Zealand Law Society

The Law Society has helpful information on making a will and estate administration.

Website: www.lawsociety.org.nz/for-the-public/common-legal-issues/making-a-will-and-estate-administration

Consumer NZ

The Consumer NZ website contains good information about wills, including the legal requirements for making a will, and what it’s likely to cost to administer after a person dies.

Website:  www.consumer.org.nz/articles/wills

Ministry of Justice

The Ministry of Justice provides useful information on how to obtain a copy of a will when a relative has died.

Website: www.justice.govt.nz/courts/high-court/apply-for-probate-and-get-copy-of-will

Māori Land Succession

The Māori Land Court website provides information on how Māori land is dealt with, including how land is dealt with after an owner has passed away.

Website: www.maorilandcourt.govt.nz

Public Trust

The Public Trust is a provider of wills and estate administration services. Facilities are also available for making a will online. You can call them or visit their website to fill out an enquiry form.

Website: www.publictrust.co.nz/products-and-services/making-a-will
Phone: 0800 371 471

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