WillsBack to Basics: Executors and Trustees

In this month’s articles we are going ‘back to basics’ to refresh your knowledge on some of the more basic but often overlooked aspects of will writing. After all, even the most basic things change sometimes and we need to make sure we’re keeping up to date. This week we are considering executors and trustees and what the difference is between the two.

What is an executor?

An executor is a person appointed in a will to act as the testator’s personal representative. They are tasked with administering the estate according to the law and the terms of the will.

It is possible to appoint different executors to deal with certain parts of the estate, for example a will may appoint executors to specifically deal with certain business assets.

A testator can appoint as many executors as they wish. However, only a maximum of four executors can act in respect of the same part of the estate. If more than four are named in the will, four can be appointed and the others will be able to apply on a vacancy. A will can also appoint multiple levels of reserve executors.

What does an executor do?

The duties of an executor include, but are not limited to, the following:

• Identifying and locating the assets and liabilities of the estate.
• Applying for a grant of probate.
• Advertising for claims and ensure all claims and debts are received, assessed and paid.
• Dealing with tax returns and paying any inheritance tax.
• Arranging the testator’s funeral.
• Determining the beneficiaries, distributing the estate in accordance with the will and transferring assets to trustees if necessary.
• Defending the estate against litigation should any arise.

What is a trustee?

A trustee is someone who is given legal responsibility to hold assets and act in the interests of, or for the benefit of, certain beneficiaries under the terms of a stated trust.

Similar to executors, no more than 4 trustees can be appointed to act at once, however reserve trustees can be appointed.

If the trust includes land a minimum of two trustees are required for the some of the trustees’ functions. If that trust names a sole trustee, that trustee would need to appoint a second trustee to act alongside them.

It is fairly common for the executors of a will to also be named as the trustees, but separate trustees can also be named. Where there are multiple trusts in a will, different trustees can also be appointed for each trust.

What does a trustee do?

The duties and responsibilities of a trustee include, but are not limited to, the following:

• Keep records of trust income and expenses.
• Pay any tax due on the trust.
• Keep accounts.
• Protect and preserve the trust assets.
• Distribute income and capital to beneficiaries in accordance with the terms of the trust.
• Act impartially.
• Duty of care to use such care and skill as is reasonable in the circumstances.
• Duty to not benefit personally from the trust (not including professional charging clauses).