For your Will to be valid, it must name executors. These are the people or organisations who carry out your wishes when you die. It is important that you choose the right executors for you. If there is a possibility of a trust being created in the Will, then you will also need to appoint trustees – these can be the same people as your executors. Here are a few issues you may want to consider when choosing executors and trustees…
Where more than one person is being appointed,you should consider the personalities of your chosen executors and the relationships between them. It would be highly inadvisable to appoint people who you know do not get along.
There is a need to be physically present to deal with the testator’s affairs, for at least part of the process. If you appoint executors who live at the other side of the country or even abroad this will make that difficult.
If you die before all of your children are 18, the guardians named in your Will will become parents to your children. In this case your executors will become trustees to manage any money or other assets left to the children until they reach the age of inheritance. There are 2 options:
- Make your guardians your executors. In this way they are bringing up the children and managing their money, or
- Have executors separate from the guardians – this means that there is a check on what the guardians are spending from the trust fund, as the executors can use their discretion whether to release money for the children before they reach the age of inheritance.
Spouse or Children as Sole Trustees
Where a trust is included in favour of the spouse, it is advisable to include other trustees to act jointly with them in order to prevent any conflict of interest due to the spouse being sole trustee as well as primary beneficiary. Likewise, if children are appointed as trustees for a trust in favour of a spouse they may act too cautiously in order to preserve the assets that they would inherit on the spouse’s death.
Whilst a bankrupt person can technically be appointed, there are some functions that a bankrupt executor or trustee would not be able to complete so it is advised that alternative options are considered.
If you have a complicated estate, it should be considered whether the suggested persons would have the required skills to administer the estate or manage the trust.
Protecting a Beneficiary
Where a trust is being included to protect assets for a beneficiary with reduced capacity or whom you do not trust to make their own decisions (perhaps due to alcohol, drug or gambling addictions) it would be advisable to not include that beneficiary as a trustee of that trust.
A maximum or 4 people may act as executors or trustees at the same time. You can however, consider naming reserve beneficiaries.