OPINION: Where there is a Will, there is a way - all you need to know...

WHAT ARE EXECUTORS, TRUSTEES, GUARDIANS OR

ATTORNEYS?

The role of an Executor is to take all the necessary steps to carry out the wishes of the deceased as outlined in their Will. The role of a Trustee takes over where assets are held for the benefit of someone else – e.g. such as minors where the trustee manages the assets until the children come of age. The role of a Guardian is to take over the day to day care of minor children. The role of an Attorney is to look after a person personal and financial affairs, if they are no longer capable of doing so. Put simply – The Executor is there to carry out the instructions under the Will, the Guardian is there to take care of the children, the Trustee is the financial manager for all Trust beneficiaries under the Will and the Attorney looks after you if you can no longer look after yourself.

WHO SHOULD I APPOINT AS EXECUTORS?

Choosing the right person or persons is an important decision. Persons who are willing, capable, and trusted. Ideally, it should be a job given to two people to act as co-Executors. It is also a good idea to make provision for them to be compensated for doing the job otherwise they are only entitled to claim expenses. This can be done by a bequest or by a charging clause in the Will. The Executor needs to be able to identify assets, take control of them and pass them on to the people entitled under your Will. So tell them where they can find all the details – whether it’s in a shoe box or safe at home or our office.

There is nothing to prevent a family member, who may also be due to benefit under the Will, from being appointed as an Executor. It is advisable to inform someone if you chose them as your Executor and to get their agreement to be your Executor.

SO, HOW DOES AN EXECUTOR DO THE JOB?

When you die your assets are frozen and a legal document is needed to allow your Executor to unfreeze these assets and manage the estate left behind. The main duty of the Executor is to collect and then give the assets to those entitled – the beneficiaries as outlined by you in your Will.

The Executor has a duty to protect property for the beneficiaries - e.g. insuring house and contents. The Executor is also obliged to pay your funeral expenses, expenses, debts and pass on your assets to those you nominated. To do all this the Executor need to get a legal authorisation , called a Grant of Administration. Probate or Administration is the legal term for a procedure that gives a person, chosen by you, the legal document that gives them authority to manage this estate. To do this, they need to identify all assets, collect, protect them and document them. They also need to crystalise all debts and liabilities of the deceased and identify those entitled under the Will. For assets that will not pass automatically, an Executor needs to go through a number of legal steps to get the Grant of Probate from the High Court. To do this, they will need to be able to locate the Will - in most cases the Will is held by the Solicitor who acted for the deceased person and the Executor should have knowledge of it. It is not unusual for an Executor to be contacted by the solicitor holding the Will. Quite often, the Executor makes contact with the Solicitor when the Testator (person who makes a Will) passes away. The Solicitor will then make arrangements for the Executors to call for the reading of the Will. After the meeting, the Executors and the Solicitors will be on a fact finding mission to find out the assets and the liabilities of the deceased. It is very helpful if the deceased has left a summary of assets, bank accounts and insurance policies with the Will as it can be a good starting point in the enquiries. Once the Grant has been obtained, the Executor now has a legal duty to administer the estate in accordance with the law of succession and the wishes of the deceased as set out in their Will. They have the power to gather all your property and distribute it in line with the directions in the Will. So, for example, money in your bank account can be withdrawn, shares can be sold and title to property (e.g. houses) can be transferred to the beneficiaries or sold, depending on the instructions in the Will.

SO WHERE DO YOU GO FROM HERE - ESTATE AND SUCCESSION PLANNING?

Estate planning is planning the transfer of assets to the next generation.  While making a Will is certainly the first step in planning ahead, there are

other issues to consider.

In certain circumstances it might be appropriate to make gifts to the next generation during your lifetime.  For instance, you may wish to transfer your business or farm to one of your children who is working in the business or on the farm. 

You may want to give your children a benefit now as they start out in their adult lives to help get them set up. 

It is always vital to remember to take measures and retain enough assets to maintain yourself for your lifetime, such as a nest egg for nursing home care or retaining a right of residence in the family home on the transfer the ownership.

When all is said and done, if you plan it there is every chance that it will happen as you wish, if you do not, there is every chance that it will not.

The material contained in this article is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.