Many people who are appointed Executors of Wills are not aware of their legal duties.
Executors are appointed to carry out the wishes of those who appoint them. An Attorney is appointed to make decisions in certain circumstances on behalf of a living person. Both roles carry what is known as fiduciary obligations and are, ultimately, responsible to the Court for their actions. A fiduciary duty is an obligation to act, with no conflict of interest, in the best interests of another person or group of people.
If you are appointed to these roles you are personally liable for breaches of duty of care. Such obligations are not to be taken lightly, and responsibility cannot be handed to another person.
Executors have a duty to administer an estate on the death of the person in whose will they are appointed. Their role is to execute the terms of the will, administer the estate including payment of any outstanding debts, apply for probate and distribute the assets in accordance with the terms of the will. There can be up to four people nominated to this role. You can, if you wish, choose not to act or to take a step back, but reserve your power while allowing the other executor(s) to act. However, once you have started to act as executor you have to see the process through.
An attorney can be appointed to be a Power of Attorney in the case of property and financial matters and/or health and welfare. The person appointed (the attorney) will make decisions during the lifetime of the person appointing them in the event that the person (donor) becomes unable to make those decisions. The executor only commences duties on the death of the person appointing them.
Power of Attorney allows an individual to state his wishes and give both the attorney and the care provider comfort in setting out who can or cannot act for him. It is sensible to have a health and welfare LPA drawn up so that should you lose mental capacity then your attorney has clear authority over such things as choice of care home and medical treatment.
Due consideration should be given to whom you appoint as executors or power of attorney. It can be useful to appoint a trusted family friend or a more remote family member than a spouse or children or even to act alongside them. A professional could also be appointed such as a Solicitor or Accountant.
Should you require any help with making a Will or putting a Power of Attorney in place please do not hesitate to contact Green & Co.
Please note: This article is a commentary on general principles and should not be interpreted as advice for your specific situation.