What is an Executor?
Your executor is the person legally responsible for administering your estate after you die. Their role begins when they receive your death certificate and ends when your estate has been fully distributed to your beneficiaries.
An executor's duties typically include: registering the death if no other family member has done so; arranging the funeral if required; identifying and securing all assets — bank accounts, property, investments, personal possessions; applying to the Probate Registry for a Grant of Probate which gives them legal authority to deal with the estate; collecting all money owed to the estate; paying all debts and liabilities, including any inheritance tax due; distributing the estate to beneficiaries in accordance with the will; and preparing estate accounts.
Being an executor is a significant legal responsibility. It can take months or even longer for complex estates. It is unpaid unless your will specifically provides otherwise or the executor is a professional.
What is a Trustee?
If your will includes a trust — for example, money held for a child until they reach a certain age, or a property trust for a life tenant — the people responsible for managing that trust are your trustees.
In most wills the same people act as both executors and trustees, simply performing different roles at different stages. As executor they wind up the estate. As trustee they then manage any ongoing trust for the beneficiaries.
A trustee's duties include holding trust assets safely, investing them prudently where appropriate, acting in the best interests of all beneficiaries — both current and future — and distributing assets to beneficiaries when the trust ends. Trustees must follow the terms of your will precisely and comply with their legal duties under trust law.
A trust over property can continue for decades — for example, a life interest trust that lasts until a life tenant in their fifties eventually dies. Choosing trustees who are likely to still be able to act for the duration of the trust is important.
Who Can Be an Executor or Trustee?
In England and Wales, any person aged 18 or over who has mental capacity and is willing to act can be an executor or trustee. There is no professional qualification required. Most people appoint a spouse or civil partner, an adult child, a sibling or a close friend.
You can appoint up to four executors in England and Wales, though one or two is most common. You can appoint a professional — such as a solicitor — but they will charge for their time, which is taken from the estate.
You can also appoint a trust corporation or professional trustee for ongoing trusts, though again this involves cost. For most straightforward situations, appointing trusted family members or friends is perfectly appropriate.
Why You Should Always Appoint Substitutes
It is strongly recommended that you appoint at least one substitute executor and trustee in your will. This is the person who steps in if your first choice is unable or unwilling to act — because they have died, because they have lost mental capacity, because they live abroad, or simply because they choose to step aside.
If no executor named in your will is able to act, someone must apply to the court for authority to administer the estate. This causes delay, cost and uncertainty for your family at an already difficult time. A simple substitute appointment avoids this entirely.
If your will includes a trust for children under 18 or a property trust, having two trustees acting together is standard good practice. Two trustees provide a check on each other and are required in some circumstances — for example, when selling land held on trust.
Things to Consider When Choosing
When choosing your executor and trustees, consider:
- Trust: Are they completely trustworthy with financial matters? Do they have any personal interest that might conflict with the beneficiaries?
- Practicality: Are they organised and capable of dealing with paperwork, HMRC and financial institutions?
- Availability: Do they live reasonably close by? Will they still be able to act when the time comes?
- Age: If you appoint someone of similar age to you, they may predecease you or lack capacity when needed. Consider whether a younger person might be a better long-term choice.
- Willingness: Have you spoken to them? Executors and trustees must consent to the role. Nobody should be surprised to find themselves appointed.
Always tell your chosen executors and trustees where your will is kept. A will that nobody can find is almost as problematic as not having one.
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