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?
Your executor(s) is/are the person(s) who deal with ‘probate’ – ie they deal with the ‘administration of your estate. That will include:
- value the estate assets
- apply for probate (and pay IHT if it is due)
- realise assets
- pays legacies
- settle things with the tax man!
- provide estate accounts to the residuary beneficiaries
- pay the residuary estate
They deal with all ‘outright gifts’ in your will – ie gifts without conditions. But, if there are gifts with conditions (‘trusts’) then your trustees will look after those. It may of course in fact be the same people as your executors! But, the law sees them wearing two different hats.
What is a Trustee?
A trustee is the person(s) 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.
Take a look at our article which discusses further the types of will trusts that can arise (some without you even knowing!).
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. In contrast, the executors potentially derive power from the will, but to enact that power, they must obtain a grant of 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 sort 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. They might include:
- children – gifts to children
- life interest trust – known as an interest in possession trusts
- discretionary trusts – where the trustees have discretion as to who gets what and when
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. The appointment for executors and trustees (where it is the same people) will often look something like this:
I APPOINT as my Executor(s) & Trustee(s) JOE BLOGGS of 1 Accacia Ave Townborough and JIMMY DEAN of 2 High Street Hollycan
Free Legal Guide
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In my will made a few years ago It is written I appoint my 2 sons to be executors also in brackets (hereinafter called ”my Trustees”) followed by, to be executors and trustees of my will.
The trouble I really do not understand the Trustee part. Do I need to make a new will ? As I wish my sons to be able to act independant of each other. They live 100 miles apart it would make life very difficult if both have sign everything I can trust both to be honest.
Hi, and thank you for an excellent question. So first off, it is quite normal for a Will to make the executor/trustee appointment like that. Two points come from that. Firstly the (hereinafter called my Trustees) bit is just legal drafting protocol to save having to keep saying executors and trustees throughout the will.
Secondly, the two ‘jobs’ are different, and indeed you may not need trustees, but again, it is quite normal protocol to appoint both. So an executor deals with the ‘administration of an estate – ie get probate, realise assets, pay bills, pay cash legacies, and pay the balance of the money (the residuary estate) to the beneficiaries. This is where the role of Trustee might come into play.
So for example, if one of the beneficiaries is under 18, the executors can not pay that money to a minor beneficiary and they will need to hold it on their behalf until the beneficiary reaches 18. In doing that, they are acting as trustees, not executors. A technical point I appreciate – but a good example of where trustees may come into play. You can read more about gifts to minor beneficiaries in this article >
Turning then to your question about executors/trustees acting together or separately, the practical reality is that there is rarely that much to be done requiring joint physical input to something that needs executors to be in the same place and time. Unlike say a Lasting Power of Attorney, the concept of acting ‘jointly and severally‘ doesn’t quite apply in the same way to executors, so there is nothing one could say in the will, other than to simply exclude one or more.
We hope that this is of come help. Do remember that it is NOT intended to be legal advice specific to you. I you would like to review your will, this is of course something our expert wills and probate solicitors would be delighted to help with. Meantime – thank you for visiting QLAW!
Hi there, my partners father recently passed away and his will names my partner as Executor and Trustee. He leaves a property. does my partner need to apply for probate, or is that not necessary as he is names as a Trustee? I would add, there are no trusts in place. the property is worth ~£300k.
I believe probate will be needed but looking on Google there are conflicting answers!
Thanks for any clarity you can offer.
Iam pleased to see that people get their questions answered
Thanks Rose. We do try our best to answer as many questions as possible. Our free legal resources are proving much more popular than we anticipated and keeping up with the enormous amount of visitors questions is becoming quite a challenge. We have just launched a very basic ‘Forum’ which we will be developing significantly in the coming months. It will allow other’s in the QLAW community (including other solicitors) to help out and share their views. So, watch this space!! VIEW OUR FORUM!