Please read this agreement carefully before you appoint Willed as the Executor of your Will. This agreement sets out the terms and conditions on which you appoint Willed to act as an independent executor of your Will (created using the Willed Platform or otherwise) and fees we charge for our Executor Services, such as the work done to obtain a grant of probate and to administer and distribute your Estate. You acknowledge that you have read, understood and agree to be bound by the terms of this agreement.
Willed reserves the right, in our absolute discretion, to change any provision of this agreement (including our Professional Executor Fees) in any way and at any time, by providing reasonable notice to you (or after you die to your Beneficiaries) in writing.
If you do not agree to these changes, you may terminate this agreement (without liability to us) at any time prior to your death by creating a New Will and appointing a new Executor. If you terminate our appointment as the Executor of your Estate and you fail to appoint a new Executor before you die, you die will Intestate. If you die Intestate, you have no control or say over the distribution of your assets and your assets will be distributed to your family members according to a pre-determined formula set out in the intestacy laws of the state or territory in which you lived at the date of your death.
To appoint a new Executor, you must create a new Will and you can use the Willed Platform to create a whole new Will. Should you terminate this agreement, Willed strongly recommend that you act immediately to appoint a new Executor by creating a new Will. Willed shall not be liable to you, your Beneficiaries or anyone else for any Loss if you revoke our appointment as your Executor by terminating this agreement.
Willed shall use reasonable endeavours to provide the Executor Services in accordance with your instructions and wishes as specified in your Will. In performing the Executor Services, Willed shall:
provide the Executor Services in a professional and diligent manner;
act independently and in the best interests of all Beneficiaries when administering your Estate; and
at all times comply with all Relevant Laws.
You acknowledge and agree that Willed:
has the specific and general powers granted by your Will and otherwise authorised by Relevant Laws, to provide the Executor Services, such as to administer your Estate, pay your debts and to distribute the assets to your Beneficiaries; and
may require the assistance of Third Party Providers to provide the Executor Services. Willed may, at our absolute discretion and without notice to any Beneficiary or third party, appoint any Third Party Providers to provide goods or services connection with your Estate. To the maximum extent permitted by Relevant Laws, Willed makes no representation or commitment and shall have no liability or obligation whatsoever in relation to goods and services provided by, or acquired from, Third Party Providers in connection with your Estate.
Fees and charges
No Executor Services will be provided by us and no Professional Executor Fees are payable by your Estate until after you die.
In performing the Executor Services, Willed shall charge your Estate following fees (either charged as a lump sum or periodic payment) (Professional Executor Fees):
Gross capital value of Estate
Fixed commission rate (one-off payment)
Commission on income (on-going)
on the first $500,000
on the next $250,000
on the next $250,000
on all assets above $1,000,000
Minimum fee the lessor of 4.4% of the Gross Capital of the Estate or $5,000
The Professional Executor Fees shall be payable in Australian Dollars from the gross capital value of your Estate and income received from your Estate capital and are exclusive of GST, which shall be payable in addition. To the maximum extent permitted by Relevant Laws, you agree that all Professional Executor Fees payable to Willed are non-refundable.
The Professional Executor Fees are only payable if your Will allows for commission and other professional fees to be charged. Clause 11 of your Will provides for commission to be charged on capital (in accordance with the column titled ‘Fixed commission rate’ in the table in clause 4.2 above) and on income if any income is received by your Estate (in accordance with the column titled ‘Commission on income’ in the table in clause 4.2 above).
Commission on income would only be charged if the Estate administration proceeded for more than 12 months, which would be the case if there were infant Beneficiaries, and the final distribution of the Estate was delayed until they become of age.
If for any reason, Willed is unable to charge and retain commission and income from my Estate, I authorise Willed (as my Executor), to charge of $175 per hour (exclusive of GST), to provide the Executor Services. The minimum fee to provide Executor Services is $5,000 (exclusive of GST).
The Professional Executor Fees do not cover out of pocket expenses and disbursements (such as court probate fees, photocopying and postage) and professional services fees provided by Third Party Providers (such as legal services, tax and accounting services, property services, valuation services, skip tracing services and financial planning services) (collectively, Third Party Fees). You acknowledge and agree your Estate will reimburse Willed at actual cost for these Third Party Fees.
You agree that Willed shall appoint its affiliated law firm, Willed Law Pty Ltd, to provide legal services in connection with your Estate, including, but not limited to, obtaining a grant of probate. Clause 11 of your Will provides an entitlement for Willed Law Pty Ltd to charge professional legal fees at its prevailing rates at the time in respect of the administration of your Estate. Willed Law Pty Ltd has agreed with us that it will not charge your Estate commission or for work of a non-professional nature. Your Estate will reimburse Willed at actual cost for professional legal services provided by Willed Law Pty Ltd in the administration of your Estate.
You understand and acknowledge that:
Executors can claim commission as recompense for pains and trouble of acting as an Executor and are entitled to a once only capital commission not exceeding 5% of the assets of your Estate;
if you were to appoint family or friends (instead of Willed) to be your Executor, it is possible that person may not charge commission at all in respect of the administration of your Estate, and in cases where Beneficiaries are also appointed as Executors, there is no need for any consideration of Executors commission; and
as an alternative to a fixed commission rate in your Will, the rate of commission could be determined either by agreement between the Beneficiaries or by the relevant Supreme Court. However, in the event that the Beneficiaries are not adults or do not have legal capacity at the time of administration of the Estate, then an application to the relevant Supreme Court will be required. The cost of such application would be borne by the Estate, which could be substantial. If you do not agree to a fixed commission rate in your Will, you should not appoint Willed as your Executor.
Willed is not a law firm and we are not providing you with any legal, financial, taxation or other advice. No lawyer-client relationship is created between you and us in connection with appointing us as your Executor. If you require legal advice, please contact our affiliate law firm, Willed Law Pty Ltd.
To the fullest extent permitted by Relevant Laws, Willed excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise) in connection with the provision of the Executor Services (or any goods or services provided in connection with the Executor Services, including goods or services provided by Third Party Providers) or this agreement.
Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth), wills, probate and administration legislation or any other national, state or territory legislation where to do so is unlawful.
Limitation of liability
To the maximum extent permitted by Relevant Laws, Willed will not be liable to you, your Estate, any actual or potential Beneficiary or any third party for any Consequential Loss arising out of, relating to or connected to, the provision of the Executor Services (or any goods or services provided in connection with the Executor Services, including goods or services provided by Third Party Providers) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
Under no circumstances will Willed’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Minimum Fee payable to us under this agreement.
To the maximum extent permitted by Relevant Laws, your Estate agree to indemnify and hold Willed, its Related Bodies Corporate, its Third Party Providers and its Personnel (collectively, the Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:
the provision of the Executor Services by Willed (or any goods or services provided in connection with the Executor Services, including goods or services provided by Third Party Providers);
any Loss suffered by your Estate, your actual or potential Beneficiaries or any third person incurred in connection with the administration or execution of your Estate, or any failure by Willed to exercise any of the Executors’ powers granted under your Will or under any Relevant Law; or
the revocation of Willed’s appointment as your Executor by you, your Beneficiaries or the relevant Supreme Court,
except Willed will not be entitled to be indemnified by your Estate in circumstances where Willed have acted dishonestly, fraudulently or engaged in any act or omission Willed knew or ought to know was a breach of relevant probate laws.
Subject to clause 8.2 and save as required by law, all information (including Personal Information) supplied by you to us or otherwise brought to our attention, in relation to your Will, your Estate, your Beneficiaries (actual and potential), your pets, the guardians appointed by you or any other terms of this agreement are confidential and will not be disclosed by us to a third party. This includes, without limitation, information provided to you in any form (including written and electronic) and by any means (including on, or via, the Willed Platform).
Willed may disclose your information (including Personal Information) to:
persons who have a need to know for the purposes of this agreement. For example, we may disclose information relating to you or your Estate to your Beneficiaries after you die, or to service providers to stop utility or service charges, financial institutions to freeze bank accounts or funeral homes to arrange for your funeral; and
Willed’s Personnel and Third Party Providers for the purpose of performing the Executor Services. For example, we may disclose information relating to your Estate to Willed Law Pty Ltd for the purpose of applying for a grant of probate.
You may terminate this agreement (without liability to us) at any time prior to your death by creating a New Will and appointing a new Executor. If you terminate our appointment as the Executor of your Estate and you fail to appoint a new Executor before you die, you die will Intestate. If you die Intestate, you have no control or say over the distribution of your assets and your assets will be distributed to your family members according to a pre-determined formula set out in the intestacy laws of the state or territory in which you lived at the date of your death. Willed strongly recommend that you act immediately to appoint a new Executor by creating a new Will.
Willed may terminate this agreement (without liability to you, your Estate, your Beneficiaries or any third party) at any time before or after your death by providing you or your Beneficiaries (as the case may be) with a least 14 days’ written notice.
To appoint a new Executor, you must create a new Will and you can use the Willed Platform to create a whole new Will. Should this agreement be terminated by either party, Willed strongly recommend that you act immediately to appoint a new Executor by creating a new Will. To maximum extent permitted by Relevant Laws, Willed shall not be liable to you, your Estate, your Beneficiaries or anyone else for any Loss if our appointment as your Executor is revoked by us, you or your Beneficiaries (as the case may be).
Willed shall have no liability to you, your Estate, any potential or actual Beneficiary or any third person under this agreement if we are prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications or hosting network, act of God, war, riot, pandemic, epidemic, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of hosting or data centre providers or other suppliers or sub- contractors (including Third Party Providers).
Independent legal advice
You warrant and covenant in favour of Willed that you have:
read the terms of this agreement and understand these terms (and that you have been given an adequate opportunity to do so);
understood the extent and nature of your obligations pursuant to this agreement, prior to executing it; and
received independent legal advice with respect to this agreement, or otherwise waived your rights to do so.
Binding on Estate
This agreement extends to bind the parties hereto and also their respective heirs, Executors, successors, assigns, administrators and legal personal representatives, and a party includes, where the context so permits, that party’s respective heirs, Executors, successors, assigns, administrators and legal personal representatives.
A waiver of any right is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
If any provision (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
This agreement, and any documents referred to therein, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
Willed may, without your prior written consent, assign, transfer, charge, sub-contract or with all or any of your rights or obligations under this agreement.
The laws of the State of Victoria, Australia govern this agreement. The parties agree to submit to the exclusive jurisdiction of the Courts of Victoria.
In this agreement, unless the context otherwise requires:
Account Login means the account login page used by you to access and use the Willed Platform;
Beneficiary means the person who benefits from your Will;
Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the agreement (i) indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense; (ii) loss of revenue, profit, income, bargain, opportunity, use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data; (iii) loss of inheritance, loss of opportunity to inherit, loss of bequeathment or legacy, loss of opportunity to receive a bequeathment or legacy, costs (including legal costs) to apply for probate or letters of administration; (iv) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by an actual or potential Beneficiary or third party; or (v) loss or damage of the nature set out above in clauses (i) to (iv) (inclusive) that is incurred or suffered by or to an actual or potential Beneficiary or a third party;
Estate means all of your assets and liabilities;
Executor means the person or entity appointed to administer your Estate after you have died. In this case, you have appointed Willed as your Executor;
Executor Services means the independent executor services provided by Willed, which includes, but is not limited to: (i) making arrangements for your funeral (in consultation with your family); (ii) determining and protecting the assets and liabilities of your Estate; (iii) applying for a grant of probate (iv) identifying and contacting your Beneficiaries and distributing the asset of your Estate to your Beneficiaries; (v) identifying liabilities and creditors of your Estate and paying the Estate’s liabilities; and (vi) finalising the tax position of the Estate;
GST has the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intestate means to die without leaving a Will;
Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss;
Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, disclosed to or made available to Willed in the course of providing the Executor Services;
Personnel means any officer, employee, agent, contractor, sub-contractor or consultant of Willed (including Third Party Providers);
Professional Executor Fees has the meaning in clause 4.2;
Related Bodies Corporate has the meaning in the Corporations Act 2001 (Cth);
Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and includes wills, probate and administration legislation.
Third Party Fees has the meaning in clause 4.5;
Third Party Providers means a provider of third party goods and services, such as Willed Law Pty Ltd, who provide professional legal services;
Will means the legal binding document which sets out your wishes regarding the distribution of your assets and the care of any of your minor children; and
Willed Platform means the online platform managed and operated by Willed, and used by you to create your own estate planning solutions, including the application and database software, the system and server software used to provide the online platform, the computer hardware on which that application, database, system and server software is installed, and all intellectual property contained therein, provided or otherwise made available by Willed or used by you.
In this agreement:
the singular includes the plural and vice versa;
a gender includes all genders;
a party means a party to this agreement;
where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
the words ‘including’, ‘such as’, ‘for example’ or similar, is not intended as a term of limitation; and
all monetary amounts are expressed in Australian Dollars ($AUD) unless expressly stated otherwise.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.