Writing a will is a big responsibility. You not only have to make sure that your wishes are carried out after you die, but you also have to appoint someone to carry out those wishes.
But what is the difference between a will trustee and an executor? Are they the same thing, will you need to appoint both and can they be the same person?
A Will Trustee is someone who is in charge of a Will and its assets, whereas an Executor is responsible for administering the Will. They can both be the same person. A will trustee generally has more power than an Executor.
What are the main differences between a Will trustee and an Executor?
The main difference between a Will trustee and an executor is that a Will trustee is in charge of the Will and its assets, whereas an executor is responsible for administering the Will.
The Will trustee generally has more power than the executor, as they can make changes to the Will if necessary.
The executor does not have this power, and their role is simply to carry out the wishes of the deceased as stated in the Will.
Some of the other main differences include:
- A Will trustee does not need to be a UK resident, but an executor does.
- Courts can remove Will Trustees from their role, but they are not able to remove Executors.
- A Will trustee is not personally liable for any debts of the estate, but an executor can be.
Most people will appoint a family member or friend as their Will trustee or executor. If you are unsure of who to appoint, you can speak to a solicitor for advice.
An Executor is appointed by the Will
While both executors and trustees have important responsibilities, there are key differences between the two roles.
One of the other main differences is that an executor is appointed by the Will, while a trustee is usually appointed by the terms of the trust agreement.
Appointed by the will means that the executor’s role is to carry out the wishes of the person who made the Will (the testator).
In contrast, a trustee’s role is to administer the trust following the terms of the trust agreement.
A Trustee is not subject to court supervision
Another key difference in the Will trustee vs Executor debate is that an executor is supervised by the court, while a trustee is usually not subject to court supervision.
This means that a trustee has more freedom to make decisions about how to manage the assets in the trust.
However, this also means that trustees have a higher level of responsibility to act in the best interests of the beneficiaries.
For example, they may be responsible for investing in the assets of the estate and managing them over time.
This is often the case with trusts set up for children, where the trustee has to ensure that the money is used in a way that benefits the child.
What is a Will Trustee and what do they do?
A Will Trustee is someone who is in charge of a Will and its assets.
This means that they are responsible for ensuring that the Will is executed according to the wishes of the person who made the Will (the testator).
They will also be responsible for managing the assets of the estate and distributing them to the beneficiaries in accordance with the Will.
This includes ensuring that any debts of the estate are paid off and that any taxes due are paid.
The role of a Will Trustee can be very complex, particularly if there are multiple beneficiaries or if the estate is large and complicated.
It is therefore important that you choose someone you trust to take on this role.
What is an Executor?
An executor is a person named in a Will to carry out the instructions and final wishes of the Will maker, also known as the decedent.
They are usually named in the Will, but if no executor is named, the court will appoint one.
The executor has many responsibilities, which include but are not limited to:
- Filing the Will with the probate court
- Locating and inventorying assets
- Distribute the assets of the estate in accordance with the Will
- Arranging for the probate of the Will, if necessary
- Providing notice to creditors of the estate
- Defending the Will from any challenges
An executor distributes Will assets
Another example of the difference between the two roles is that an executor is responsible for ensuring that the Will is executed according to the wishes of the person who made it.
This includes distributing the assets of the estate to the beneficiaries. This is usually carried out through the probate process.
To find out more about probate, head over to our other helpful article on How Long Does Probate Take? Your Probate Questions Answered.
A trustee manages assets that have been placed in trusts
A trustee, on the other hand, is responsible for managing assets that have been placed in a trust.
This includes administering the trust and distributing the assets to the beneficiaries of the trust. Trustees have a fiduciary duty to act in the best interests of the beneficiaries.
In its simplest terms, this means that they must act honestly and in good faith.
Will Trustee vs Executor
Trustees must also exercise a high degree of care when making decisions about the trust.
An executor, however, is simply following the instructions set out in the Will.
Another main difference between a trustee and an executor is that a trustee has ongoing duties, while an executor’s responsibilities end when the estate is distributed.
Some of those ongoing duties include:
- Managing and investing trust assets
- Keeping beneficiaries informed about the trust
- Making distributions to beneficiaries by the terms of the trust
Who has more power? – Will Trustee vs Executor
So, who has more power? In general, trustees have more power than executors. However, this isn’t always the case.
For example, if the Will gives the executor discretion to make decisions, then the executor may have more power. It depends on the specific situation.
Ultimately, both trustees and executors play important roles in ensuring that the Will is carried out according to the deceased’s wishes.
While they have different powers and responsibilities, they both must act in the best interests of the beneficiaries.
Can executors and trustees be the same person?
Yes, it is quite common for executors and trustees to be the same person. Many people name their spouse, children, or other close relatives as both their executors and trustees. However, there may be situations where the same person shouldn’t fill both roles.
For example, if the estate is complex or if there are disagreements among the beneficiaries, it may be best to have separate executors and trustees.
Who can be a Will Trustee?
The Will Trustee can be a friend, family member, solicitor, financial institution, or professional Will writer.
The types of financial institutions that can be trustees are banks, credit unions which are different from banks, and trust companies.
It is important to choose someone who you trust to carry out your wishes and who has the time and ability to deal with the administration of the estate.
You can appoint more than one Will Trustee, but it is advisable to appoint at least two people in case one of them is unable or unwilling to act.
Who can be a Will Executor?
The Will maker can appoint anyone over the age of 18 to be their executor. It is common for the Will maker to appoint a family member or close friend.
The Will maker can also appoint a professional, such as a solicitor, to act as their executor.
Will trustee vs executor – And to end with…
So if you have been asked to be a Will Trustee or an Executor in the Cardiff area of Wales, it is important to know the difference between the two roles.
If you have any further questions, then please get in touch with one of the experienced Will Solicitors who can advise you further and help you more easily understand the Will Trustee or Executor role.
We can also offer support with all aspects of the Will writing process and can answer any questions that you may have.
