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Trusts and Estates

The terms ‘Executor’ and ‘Trustee’ are often used interchangeably in Wills by Solicitors – which can lead to confusion.

An ‘Executor’ – where there is a Will, or ‘personal representative’ – where there is no Will or there is a Will but no validly appointed Executor, is responsible for administering the estate – i.e. finding out what assets the deceased had, what liabilities they owe, obtaining valuations, safeguarding those assets and, if necessary, applying for the Grant of Probate.

Once the estate has been ascertained and, if applicable, Grant of Probate obtained the baton passes, the Executor in effect becomes a ‘Trustee’ and now holds those assets ‘on trust’ to divide amongst the beneficiaries as in accordance with the Will –where there is one, or in accordance with the intestacy provisions – where there is no Will.

The Executors and Trustees of a Will are usually the same people, but they do not have to be.

When considering who to appoint you must consider that the roles of being an Executor and Trustee can be quite onerous and time consuming.  Probate can sometimes take many months, even years in complex estates.

You could choose to appoint close relatives or friends but bear in mind that generally non-professional Executors are not entitled to be paid for their time, other than out of pocket expenses.  They may therefore seek assistance from a professional, such as an Accountant or Solicitor.

If you did want to ensure a trusted firm or individual professional advisor was involved, you would appoint them as an Executor and Trustee, possibly together with the family member(s) or friend(s).  This can help to ease the burden on the Executors and ensure all true formalities are complied with.  However, be aware that professionals will charge for acting in these roles and you should therefore ensure you fully understand their charging structure before choosing to appoint them.  For example will they charge you on an hourly rate basis or as a percentage of the value of their estate?

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For more information, or advice on appointing an executor, please contact amanda.bailey@dtmlegal.com, head of trusts and estates at DTM Legal.

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