What is the difference between an Executor and Trustee?
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Your will should specify who is executor, and who is trustee (the roles are different).
If trusts arise under your will (and they may without you even knowing), you will need to appoint both executors and trustees. Choosing the right people to deal with the administration of your estate (and any such trusts) is essential. Here, we look at what a trustee is (and does), what a trustee is (and does) and tips on who you should chose to do either or both jobs.
What is an Executor?
The person who administers your estate – ie realises assets, pays legacies, and settles things with the tax man! They deal with all ‘outright gifts’ in your will – ie gifts without conditions, or gifts that are just pa
What is a Trustee?
The person appointed (in this case) by your will, and who will deal with the ‘gifts with conditions’ that the will specifies is their responsibility. This is likely to be ongoing beyond the end of the administration of the estate by the Executor.
What is the difference between an Executor and a Trustee?
An executor deals with the bulk of the administration of an estate – including getting probate. So that will include being responsible and paying the absolute and outright gifts of the will to beneficiaries. A Trustee only deals with the conditional gifts in a will (and nothing else). This will include for example holding money for children until they reach 18 – hence the trustee’s job may well extend longer than the executor’s job.
Does a Trustee need a Grant of Probate?
Oddly no – a trustee does not need a grant of probate! Their power is derived in law from the will itself, where as an executor can only do their job (normally) by getting probate.
What is a Trust?
In simple terms, a trust is a gift with conditions. That’s what makes it a separate job to those things dealt with by your executor.
Trusts can arise in wills without us even knowing (eg with gifts to children).
Do Trusts only arise in Wills?
No – trusts can be made during our lifetimes. This article is focusing on trusts that we make in our wills.
What does the Trustee Appointment look like in a Will?
Dependent upon the house style of the solicitors who prepared the will, then the appointment clause is likely to read something like:-
I APPOINT as my Trustee(s) JOE BLOGGS of 1 Accacia Ave Townborough and JIMMY DEAN of 2 High Street Hollycan
This is likely to be drafted in different terms where there the executor and trustee are the same person or people. Sometimes, trustee appointments are drafted within the gift itself. So for example if a house is gifted to someone on a lifetime trust, that gift itself may include the trustee appointment rather than there being a ‘catch all’ appointment as above.
What sorts of Trusts might arise in my Will?
Not all trusts necessarily use the word ‘trust’ in them so you may inadvertently create a trust without knowing it! In its simplest form, a trust is a gift with conditions. A Trustee is responsible for looking after that conditional gift until all conditions are met and the trust ends.
What are examples of Trusts in Wills?
These might include gifts to/of:-
- children – the trustee must hold the money for the child until they reach the specified age at which point the money is paid to the child (then adult) and the trust ends by default
- occupation of a house – this might be to a second husband or wife for their lifetime, and it is likely to then define who gets the capital value at the end
Can the same people be both Trustee and Executor of my Will?
Yes, they can be – and they often are.
Who can help me with the difference between Executors and Trustees?
If you have any questions on this subject, then please reach out to our expert team of wills solicitors who will be delighted to help. We can be contacted at firstname.lastname@example.org or you can call us on 03300 020 365.
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