Personal Or Legal Executor and Trustee – Whom Should I Appoint?

February 1, 2024    Estate Planning Lawyers Perth
Personal Or Legal Executor and Trustee – Whom Should I Appoint?

Planning for the administration of your assets and properties after death is a matter of great deliberations. If you’ve been planning to draw up a will- to preserve your assets, provide for your family, or ensure the correct treatment of the fruits of your labour after your passing- then it’s important to consider who you appoint as your executor and trustee. The best estate planning lawyers in Perth are adept at this task and can help demystify the process so that you are aware of the plan at every step.

This article guides you through the different roles associated with a will so that you can choose wisely when you finally decide to draw up a plan.

What’s the difference between an executor and a trustee?

An executor and a trustee are often confused by a singular entity due to potential overlaps in their role. However, some key differences make both roles important in administering a will.

What is the role of an executor?

  • A role of executor is tasked with distributing the assets within a will and executing the clauses of the will according to legal probate from the court.
  • They must notify all beneficiaries after the passing of the testator.
  • They must be a part of administering the estate, assets, etc., through the court.

What is the role of a trustee?

  • If a will has an established trust, a trustee manages the estate and properties of the testator in the interest of the beneficiary till the assets are fully administered and inherited.
  • The duties of the trustee are determined based on the clauses of the will and any legislation that applies.
  • Unlike an executor, a trustee may not have to appear in court.

The key difference between an Executor and a Trustee

The key difference between a trustee and an executor is that a trustee is responsible for managing the trust and fulfilling the duties of the fiduciary relationship. On the other hand, an executor is involved in the legal process of administering the property and the estate to the appointed beneficiaries by the testator.

Due to some of the overlaps in their role, some states and territories may permit the same person to administer both roles.

Read – What happens if executors disagree?

Who should you appoint as the executors and trustees of your will?

The executor and/or trustee of your will can be made on a personal basis or on a professional basis. However, there are pros and cons that govern both of these categories.

Personal basis

On a personal basis, you can appoint members of your family, relatives or close acquaintances to be the executor or trustee of your will. This is certainly a cheaper and seemingly easier way to oversee the administration of a will. However, there are more cons than benefits to having individual or personal executors and trustees.

  • Your relatives, family or close friends may not have the legal knowledge required to execute administrative duties. This is important, especially for executors who are required to appear in court for probates related to the will.
  • There is a high risk of personal bias and disputes permeating into the execution of the will.
  • In case the executor passes away before the testator, the process of changing your administrator can be quite complicated.
  • The family member tasked with being the executor or trustee may have to seek legal assistance anyway during the administration and management process, especially when the court is involved.

Professional basis

On a professional basis, you can choose lawyers, accountants and financial advisors to be the executors and trustees of your will. While this is certainly a more expensive way than choosing your family or close friends, it can help prevent major mishaps or legal oversights in the process.

  • Lawyers have the necessary knowledge and skills to navigate the legalities of will administration and estate transfer.
  • They are less likely to have any bias during the administrative and distributive process, preventing the chances of disputes.
  • As corporate entities, a law firm would always have perpetual succession in executing the will.
  • As corporate and professional entities, in case something goes wrong in the administrative process, your family may have the option to seek indemnity insurance.

Summing up

Drawing a will is essential to ensuring your estate, property and assets are utilised correctly after your passing. This is necessary to protect your loved ones and close family and can reduce conflicts in the long run. Contact the team of the best estate planning Lawyers in Perth to simplify the process and appoint your executors and trustees today.

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