Many Testators will choose the same people to act as both their Executors and Trustees, however each role is very different and comes with its own responsibilities so this may prompt testators to consider appointing different individuals for each appointment. Firstly, those who will deal with the administration process of the Estate – the Executors, and those who will manage any assets which are required to be held once the administration of the Estate is complete – the Trustees.
Where necessary and upon the death of the testator, the duty of an Executor is that they shall apply to the Court for a Grant of Probate. This enables the Executor to accumulate the assets and where it is appropriate, liquidate assets to enable distribution, in accordance with the terms of the Will. Before distributions, they must ensure that any debts and liabilities have been settled. The role could include dealing with the sale of any land/ realty, collecting in any cash assets along with the sale of any share holdings and chattels. Anything which makes up a testator’s estate, the Executor is responsible for allocating and this even includes organising the rehoming of pets.
Before the distribution of the estate, the Executors must deal with any claims which may arise and defend litigation. Where property is to be held on Trust it is the Executors responsibility to transfer the asset to the Trustees using the correct formalities.
It is also the Executors responsibility to prepare the final estate accounts along with ensuring any tax returns are complete to version all aspects of the estate as every penny must be accounted for.
Trustees are responsible for managing any Trust which may arise under a Will, remember that where land/ realty is involved then a minimum of 2 Trustees must be appointed. Trustees also have the obligation of holding funds until a specified event or time under a Will or for example in the case of a minor beneficiary and no other age is specified then until the child attains 18. Trustees are bound by the Trustee Act 1925 to act properly with a duty of care in accordance with any powers included within the Testators Will.
Overall, the appointment of both Executors and Trustees is not an office to be taken lightly and careful consideration should be given as to who should be appointed and can manage the responsibility because if anything were to go wrong then it could be those individuals who could become personally liable. If your clients have difficulty in appointing Executors and Trustees, then they could consider appointing professionals such as the SWW Trust Corporation, who deal with complex and contentious probate and trust matters daily.