What do Executors and Trustees do, and who should I appoint?

An important decision when preparing your Will is choosing who to appoint as your executors and trustees. Although many people appoint the same individuals to both roles, each carries distinct responsibilities and understanding these can help ensure your estate is managed as you intend.

Executors are responsible for administering your estate after your death. Their role involves registering the death, identifying and valuing all assets and liabilities, applying for the grant of probate if required, settling any outstanding debts and inheritance tax, and distributing the estate to your beneficiaries in accordance with your Will. As executors play such a central role in giving effect to your final wishes, it is important to choose someone you trust and who is willing to assist with the administration of your estate.

Trustees are required when your Will creates a trust. This is often necessary where a minor beneficiary inherits, as a child cannot receive assets outright until they reach 18 years old. Trustees will therefore manage those assets on the child’s behalf and may apply funds for their benefit before they reach adulthood. Trustees may also be appointed for longer‑term arrangements such as discretionary trusts, which can last for up to 125 years and allow trustees to manage a pool of assets for a group of potential beneficiaries. Although you may leave a non‑binding letter of wishes, trustees ultimately have discretion over how and when the trust assets are used, provided they are acting in the beneficiaries’ best interests.

You can appoint almost any adult over 18 to act as an executor or trustee, including family members, friends, or professional advisers such as solicitors. Many people choose spouses, adult children or close friends. While this often works well, it is important to consider whether those individuals nominated by you have the time, confidence and ability to take on the role.

Appointing a professional executor can provide expertise and reassurance during a difficult time. Although professional fees apply, these are generally paid from the estate and can be outweighed by the efficiency and support that a professional provides. Lay executors can also seek professional assistance at any stage of the administration process.

Most Wills appoint at least two executors or trustees to provide continuity and oversight, and it is sensible to name replacements in case someone is unable or unwilling to act.

What happens if a dispute arises?

Unfortunately, despite appointing capable and trustworthy individuals as your executors and trustees, a dispute may arise between those appointed and/or with the beneficiaries.

A dispute between the executors/trustees could arise due to many different reasons i.e. a breakdown in relations; a difference in opinion on how to manage the estate or trust; or a conflict may arise if the executor/trustee is also a beneficiary.

Executors/trustees have specific duties and responsibilities(fiduciary duties) when acting in their role(s), such as:

·        To observe the terms of the trust

·        To act impartially between beneficiaries

·        To avoid own interest conflict

·        To act unanimously

·        To act carefully and distribute assets correctly

Ultimately, the executors/trustees must act in the best interest of the estate/trust and its beneficiaries. If the executors/trustees breach the above duties, they are at risk of finding themselves in a dispute with the beneficiaries of the estate/trust.

In addition to the above duties, it is common practice that the terms of the estate/trust require the executors/trustees to make decisions unanimously, therefore careful consideration must be given to the appointment of the trustees to ensure they can work together to administer the estate/trust.

If a dispute arises between the executors/trustees or between the executors/trustees and beneficiaries, then depending on the nature of the dispute, there are different avenues that can be explored to resolve the issue and progress the administration of the estate/trust. For example, the dispute could be resolved through party-to-party correspondence, or by alternative dispute resolution such as mediation.

In more difficult cases, it may not be possible to resolve a dispute through the above means. As such, it may be necessary to make an application to the Court for directions i.e. guidance, which set out the steps the parties need to take to progress the administration of the estate/trust. Or whereby a dispute between the beneficiaries and executors/trustees is incapable of being resolved, it may be appropriate to apply to the Court for an order that seeks to remove the executor/trustee from office.

If you would like advice on drafting your Will or guidance on appointing executors or trustees, our specialist Wills, Trusts and Probate Team at Leathes Prior is here to help. Alternatively, if you are seeking advice relating to the actions of executors/trustees, our Dispute Resolution Team are happy to assist. Please contact us on 01603 610911 or info@leathesprior.co.uk.