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28 May 2022

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Executors, Guardians, Trustees & Attorneys – Part 1 - By Lynch Solicitors

Executors, Guardians, Trustees & Attorneys – Part 1 - By Lynch Solicitors

Executors, Guardians, Trustees & Attorneys – Part 1 - By Lynch Solicitors

What is the difference between acting as an Executor, Trustee, Guardian or Attorney?

The role or function of the Executor is to take all the necessary steps to carry out the wishes of the deceased as outlined in their Will. This would be important when the Executor collects the deceased assets and calls out their wishes under the Will.

The role of the Trustee takes over where there are minors. The Trustee manages or looks after the assets until the children reach the age when they become entitled to the assets, in their own right.

The role of the Guardian is to take over the day to day care of minor children.

While the Trustee can also act as Guardian, it might be worthwhile assigning the roles to different people so that you don't have a Guardian with a potential conflict of interest if they have to make financial decisions. The role of an Attorney is to look after a person if they are no longer capable of doing so. They can look after both their financial and personal affairs.

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.

What is an Executor?

When you die, your assets are frozen and a legal mechanism is required 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. ensuring house and contents.

The Executor is also obliged to pay your funeral expenses and debts. Your Executor carries out your wishes as set out in your Will.

Who should I appoint as Executors?

Your Executor carries out (or executes) the wishes set out in your will. Choosing the right person or persons is an important decision.

  • Persons who are willing, capable, trusted and resident in Ireland.
  • 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. 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 shoebox or safe at home or our office.
  • Give them your funeral arrangements or choices.
  • Many people appoint family members or their solicitors as Executors.
  • There is nothing to prevent a family member, who may also be due to benefit under the Will, from being appointed as an Executor.
  • An Executor (other than a professional Executor) is not entitled to get paid or profit from the role, but they are entitled to recover any reasonable expenses during the administration of the estate and they can also get something under the Will.
  • It is advisable to inform someone if you chose them as your Executor and to get their agreement to be your Executor.
  • If an Executor is to receive a benefit under a Will, they cannot witness the Will.

So what does an Executor actually do?

Their primary task is to extract what is called a Grant of Probate. When you die, your assets are frozen and a legal mechanism is required to allow another person to unfreeze these assets and manage the estate you leave behind. Probate or administration is the legal term for a procedure that gives a person, chosen by you, authority to manage this estate.

Some assets, if jointly owned or nominated, can automatically pass to the joint owner or nominated party on death and the Executor needs to be able to identify such assets.

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 will have knowledge of it.

It is advisable for anyone who makes a Will to let either the Executor or a family member know where the original Will is kept.
It is usually the Executor who 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.

The details of the assets and liabilities of the Testator must be disclosed to Revenue. Once all enquiries have been completed, the Inland Revenue Affidavit is prepared for the Revenue Commissioners.

At the same time, the Executor will complete the application forms required to issue the
Grant of Probate. Once the application is submitted, the papers will be considered by the Probate Office and, if everything is in order, the Grant of Probate will issue.

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.

Afterthought

We should all consider putting a legal stamp on our business and personal relationships where possible. To do that effectively, you may have to call on "the Three Wise Persons" or their equivalent.

It is important to give it time, get advise and choose well.

For further information or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344. 

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