Appointing Executors, Trustees & Guardians In A Will – What You Should Consider

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When you create a new Will there are many things that you need to consider, such as appointing Executors, Trustees and Guardians. We have outlined some of the basic points you’ll need to consider when having your Will created.

Appointing Executors, Trustees and Guardians

Executors

When you make a Will, you will need to consider who should act as an Executor to administer your estate after you have died. The Executor or Executors will be responsible for establishing what assets are due to your estate and what liabilities are owed by your estate.

They will need to deal with any legal requirements (such as taking out a Grant of Probate) and sort out any tax due with HM Revenue & Customs. The Executor or Executors will need to collect in the estate assets and pay out the estate liabilities, and then distribute what remains in accordance with the terms of your Will.

You may choose your Executors to be the same people as your Beneficiaries. There is no legal problem with this. But it may not always be appropriate, e.g., if they do not get on with each other or if you think they would find the task too difficult. In those circumstances, it may be sensible to appoint someone else to act, such as other family members or friends, or possibly professionals, such as your solicitors.

It is common to appoint substitute Executors in your Will, e.g., I appoint my husband as my Executor but if he has died before me or is unwilling or unable to act, then I appoint my son and/or daughter to act instead.

Trustees

If your Will includes on-going Trusts, you will want to consider who should act as the Trustees to deal with those Trusts. You may be happy to have the same people acting as both Executors and also as Trustees of your Will and this would often be the case.

There are however different types of Trusts. With some Trusts (such as a Discretionary Trust), the Trustees will have the power to decide who inherits what and when. Very careful and thoughtful consideration should be given to who your Trustees should be, particularly with this type of Trust, and this is something your solicitor can advise you on.

In some instances, it may be more appropriate to appoint different people to act as Trustees. For example:

  • Parents as Trustees of a cash legacy for their young child
  • Solicitors as independent Trustees of a Discretionary Trust

Guardians

If you have young children, you will want to consider who should act as their Guardians in the event of your death. Your children would live with your appointed Guardian or Guardians, who would make decisions about their upbringing.

We appreciate that this can be a difficult thing to contemplate but obviously, should the worst happen, it is very important to have put such arrangements in place.

Again, you can include a substitute Guardian or Guardians in your Will, e.g., I appoint my sister to act as Guardian of my children but if she has died before me or is unable or unwilling to act, then I appoint my brother to act as Guardian of my children instead.

As a Guardian is a person who your children would live with, it is better to make one appointment at a time, e.g. you appoint your brother as your children’s Guardian but if he is unable to be their Guardian, then your sister would be their Guardian, instead of your brother and sister being joint Guardians together.

Additionally, we suggest that you consider avoiding having exactly the same people acting as both Executors and Trustees on the one hand and as Guardians on the other. This is because it is the Guardian who will be asking for funds for the benefit of the child and the Trustee who will decide whether or not to advance those funds. So rather than appointing your brother to be the sole Trustee and Guardian, you might want to appoint your brother and sister as Trustees and your brother as Guardian.

Appointing Executors Trustees GuardiansHow can Nelsons help?

Jane Sutherland is a Partner in our expert Wills, Trusts & Probate team, specialising is Wills, Inheritance Tax planning, administration of estates, Grants of Probate and Powers of Attorney.

For more advice or information on appointing Executors, Trustees and Guardians in a Will, please contact Jane or a member of the team on 0800 024 1976 or contact us via our online form.

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