The executor is appointed by the probate court after filing the will. The executor will report everything they've done to the probate court judge and receive permission to distribute your remaining estate to the beneficiaries you've named in your will. They'll alert your creditors as to how they can make claims to your estate for payment, and they might have to ​liquidate some of your assets to pay those debts. Naming the same individual also streamlines the probate process. It’s perfectly normal and legal. By: Wambui Kyama, Advocate. This is the person who applies for probate of the estate. Executor and trustee are terms applied to those individuals who have been tasked with handling the will of a deceased person. If you know you have a trustworthy executor who will not mind taking on the added responsibilities of also acting as a trustee, you may want to appoint the same person to both roles. Trustees are responsible for administering a trust to the beneficiaries according to a legal agreement, whereas Executors distribute a deceased person’s assets according to a will. The presence of an executor is, therefore, critical to proper probate administration. However, where a Will establishes a trust or trusts within it, the person nominated as executor will often have to take on the role as trustee of those trusts. In fact, this is not uncommon. Barring complications, your successor trustee will perform the job without any court intervention. They’ll need to coordinate their work on the legal and financial tasks that must be done after someone dies: gathering property, paying debts, filing tax returns, and distributing property to inheritors. The easiest path is when the will instructs the probate judge as to the person who should act as the successor executor. When you are creating a will and a trust as part of your estate planning, you need to name an executor as well as a trustee, which can both be the same person, if you wish. Both Executors and Trustees serve very important roles when settling an estate and choosing the right person for the job is very important. You likely chose your appointed person as the executor of your estate because you feel he or she is trustworthy and responsible. However, through experience, Peter Lee advises that at least two should be appointed but act in the order of priority, in the event the first executor is unwilling or unable to carry out the duties. Like the executor who manages the assets of your estate, the trustee manages the assets that are put into the trust. Below, I will explain why a Trustee might be appointed in a Will and how the Trustee works with the Executor. You can move assets in and out of your trust, change your beneficiaries, or even revoke your trust entirely if you decide you no longer need it or want it. An executor is the person appointed to carry out the probate of a person's estate after that person dies. Why You Need a Memorandum of Trust and How It Simplifies Estate Plans, Find out If a Revocable Living Trust Is Right for You and How It Works, Learn the Notable Differences Between a Will and a Trust, Settling a Revocable Living Trust After a Trustmaker Dies, Learn What a Successor Trustee Does With Your Trust After You Die, What Happens If You Don't Have an Estate Plan Upon Death, Assets Not Included in Your Trust Can Require Probate, Where to Store Your Estate Planning Documents, The Difference Between a Trust Amendment and a Trust Restatement, What Settlor and Grantor Mean in a Living Trust. A trustee is only responsible for dealing with specific trusts and has no responsibilities for anything other than those trusts. Yes, it is possible for the same person to be appointed as both Executor and Trustee. It’s actually a common approach because the executor should be someone you know and trust and it’s common sense that your beneficiaries fall into that column. All Rights Reserved. These may be the same person or two different people. Just make sure it’s somebody that you trust. The trustor, meaning the person who creates a trust, identifies the person who … But someone has to take over this role if you can no longer manage your own affairs. It helps to understand the roles of the executor and the successor trustee in your estate plan as you make a decision because some of the factors can be personal. The beneficiaries can be an institution or individuals. In most cases, your successor trustee will then shut the trust down. Finally, your executor or trustee should be the type of person who gets things done-neither a procrastinator nor likely to be flustered and stymied if problems arise. cases your trustee will be the same person you appoint as the executor of your Will. You have to recognize the position of executor and the successor trustee for the estate plan to make the best decision. Pros and cons. As a result, if your executor turns out to be less trustworthy than you thought, your overall estate and your trust could be in jeopardy. Just make sure it’s somebody that you trust. Your estate will avoid probate in most cases if your revocable living trust is completely funded because you've transferred all your property and assets into its ownership. The attorney helping to settle the estate and the trust will only have one person to work with when addressing any complicated issues that may come up. Tom Catalano is the owner and Principal Advisor at Hilton Head Wealth Advisors, LLC. In many situations, the same person is named as both successor trustee of the trust and executor of the will. It is better to name a sequence of trustees or executors rather than joint ones. This type of will collects assets that were unintentionally left out of the trust and transfers them into the trust after death. Though not the case in most instances, there are times when a trust’s beneficiary is also named the trustee. Some other states have similar rules. This person is known as the executor and their role is to carry out the instructions in your Will. Can the Same Person Be Named as an Executor and a Trustee? The role therefore carries a great deal of responsibility, and potentially some liability. Trustees are then responsible for holding the monies and looking after them for the benefit of the beneficiaries. Additionally, a living will may also name a conservator, but not an executor. A Trustee is appointed in a Trust document, such as a Living Trust, to manage the estate of the person who passed away. Of course, it could also result in delays if the parties disagree on an estate matter. If you were named both an executor and trustee of an estate in California, consider taking the following steps: First of all, contact an experienced San Diego probate court attorney right away for guidance. However, these powers are lost once the executor has completed these duties and then the trustee takes over. When making your Will, it is likely you have appointed one or more people an Executor and Trustee; they may be friends, family members or perhaps a trusted professional. If you have read a will, you may have noticed that there is a person (or people) appointed as the “executor and trustee” of the will. If two different people are named to these jobs, they must work closely together. N.B The Executor and Trustee can be the same person or different individuals. Executor. Many actions would require cooperation between the two of them. Some of the distinctions are minor and some are more significant. Finally, your executor or trustee should be the type of person who gets things done-neither a procrastinator nor likely to be flustered and stymied if problems arise. As a result, if your executor turns out to be less trustworthy than you thought, your overall estate and your trust could be in jeopardy. Each job has different duties. When it comes to the role of Executor it is an individual who is accountable for managing your estate by the Probate Process. Generally, the person creating the Revocable Living Trust is their own Trustee while they are alive and capable of managing their affairs. Consult with an estate planning attorney to find out if yours is one of them. Your estate is responsible for paying the attorney, so the less work they have to do, the more money remains for your beneficiaries. In most instances, people choose their spouse or an adult child as both executor and successor trustee. But even in this case, the executor's only job would be to deal with transferring these few assets. Naming the same person as the executor of your estate and the successor trustee of your trust will minimize expenses. Personal representatives, executors, and trustees are all fiduciaries – a term that means they're entrusted to ethically and fairly deal with the affairs of others – but they can play very different roles in your estate plan. The same person can also be the trustee for a trust set up under the will. Yes, the executor and beneficiary can be named as the same person in the Will. In most cases your Trustee is the same person you appointed as the Executor of your Will. In that case, the court will usually pick another relative. One of the major differences between Trustee vs Executor is how they are appointed. Sometimes, however, it makes more sense to name a different family member or even a respected friend for these roles. An executor of a will is charged with distributing and managing the estate of the deceased. The executor is responsible for the estate. Differences Between Testamentary and Living Trusts. Trustee vs. Role of a Trustee Upon the completion of the administration of your estate there may be some assets which remain part of your estate as an ongoing trust. Assets held in a revocable living trust don't require probate to move to a living beneficiary. A fiduciary is someone who is put in charge of someone else’s money. A trustee is typically a longer-term position and can often last for many years, depending on the terms of the trust. In fact, appointing the same individual to both positions is a fairly common estate planning technique. They will also need to value your assets and account to HMRC for any inheritance tax that may be due. Whichever approach you choose, an experienced estate planning attorney can guide your through the decision-making process. The successor Trustee generally has the same duties and responsibility of a Trustee. It is not uncommon for the executor and trustee to be the same person. Of course, having multiple people involved can bog down settlement of your estate if they don't get along or have diametrically opposed ideas about actions that should be taken. In modern will drafting, it is rarely the case that a different person is appointed executor to the person who is appointed the trustee; they are almost always the same person (or people) with … If the same person is appointed executor and Commis- sion to trustee the same commission shall be payable as if the pernon person so appointed must accept or refuse both offices. Executor & Trustee Guidelines If you have been named executor of a will or trustee of a trust, these guidelines can help you understand what's expected of you in the process. Until then, their only job is to wait in the wings until you need them. A Trustee is a fiduciary over a Trust, and an Executor is a fiduciary over a probate estate. The individual you name in your will as executor of your estate is responsible for guiding your estate through the probate process. Appointing an Executor/Trustee. You may have already decided that your estate plan could benefit from having a trust or multiple trusts. This person is a fiduciary of the estate and its beneficiaries and is known by many names – an executor or personal representative of a will, but in the case of a trust, the same person typically is known as a trustee. Disclaimer | Site Map | Privacy Policy | Business Development Solutions by FindLaw, part of Thomson Reuters, Due to precautions related to COVID-19, we expanded our options for remote consultations. A Will should set out who is going to be the Executor of the Estate. They do not however, need to be the same person. It's common for the same person (or people) to be appointed as both Trustee and Executor, but not everyone fully understands why a Trustee is named in a Will or what the role entails. If you are an executor and beneficiary of the same estate, you actually have quadruple incentive to make sure you are doing the best job possible. Should You Put Your IRA or 401(K) Into Your Trust? It is not mandatory that your executor and successor trustee be the same person; there are pros and cons to each choice. It's recommended that individuals who form trusts should also create "pour over" wills, however. Executor. You already know who you want to act as the executor of your overall estate, and it may cross your mind to use the same person as your trustee. However, naming the same person to both of these roles also means that no one else will have the power to keep him or her in check. Can the Same Person Be an Executor & Trustee? The courts will usually choose whoever is listed as executor in the will, unless there’s clear evidence that they are not fit for the role. You likely chose your appointed person as the executor of your estate because you feel he or she is trustworthy and responsible. From the types of planning tools you use to the people you put in charge of your final affairs, you have a lot to consider as you detail your end-of-life wishes. Upon an incapacity, the successor Trustee takes over the role and responsibility for a Trustee. In short, the Executor (also known as a Trustee), is the person whom you have appointed in your legal Will to look after all of your stuff and to make sure that your loved ones are taken care of, with the amounts you have left behind in your estate. Executor: Should It Be the Same Person? All … If two different people are named to these jobs, they must work closely together. 11. No one single person would have unilateral control over everything. Feb 02. How Does a Revocable Living Trust Avoid Guardianship or Conservatorship? So your best friend who lives in New York can't serve as your executor, but can serve as your successor trustee. Your executor and successor trustee can usually be the same person, and it's actually a quite common arrangement. Usually, executors are close family members of the deceased—spouses, children, parents, or siblings—but the person writing a will (the “testator") can choose anyone to fulfill this role. Usually, executors are close family members of the deceased—spouses, children, parents, or siblings—but the person writing a will (the “testator") can choose anyone to fulfill this role. An executor is a person named by the deceased in his will to execute the provisions of the will and appointed by the court to perform this role. BARRY HAIMO: In Florida, you may appoint the same person, persons, or entity as executor—or personal representative in Florida—trustee, or guardian of person or property of your choice. The executor and successor trustee can be the different people, but do not have to be. Finally, make sure the executor, personal representative, or trustee you select does not have a conflict of interest with your estate. While the responsibilities of an executor and trustee remain the same, differences exist in how the two are appointed to carry out the deceased’s wishes according to his or her will. In fact, choosing the same person for both roles can streamline how your estate and trust are administered and ensure your wishes are carried out on both fronts. Speak to an estate planning attorney today Legal guidance can be of great assistance when you are administering an estate or a trust, especially if you have limited knowledge of this complex legal process. Accordingly, the probate judge assigned to the estate will need to replace the executor as soon as possible after the resignation. The executor role becomes effective when you pass away. A person can be both an executor and a trustee of a testamentary trust. An Executor is the person whom you appoint in your Will to administer your estate and carry into effect the provisions of your Will. A person's will can name both an executor and a conservator. In many situations, the same person is named as both successor trustee of the trust and executor of the will. Consider naming one child or relative as your executor and two children or relatives as successor co-trustees to avoid beneficiary feuds and promote family harmony. However, sharing the workload and keeping both parties accountable could be a benefit to naming separate parties. A trustee is only responsible for dealing with specific trusts and has no responsibilities for anything other than those trusts. An executor of a will is charged with distributing and managing the estate of the deceased. Naming the same person as your executor and your successor trustee might present complications depending on the laws of your state. Please, On behalf of Mark A. From a legal standpoint, beneficiaries are certainly eligible to serve as the trustee of an estate. 145 High Street Nagambie VIC 3608 (03) 5794 2334 www.tbalaw.com.au 2 of law (minor beneficiaries … Many people appoint the same person to serve as Executor and Trustee, while other people like the checks and balances of having different people serve in different roles. Brown, P.S., Attorney at Law | Jan 8, 2020 | Uncategorized |. The executor's duties include obtaining a grant of probate, getting in all of the assets, paying outstanding debts including funeral expenses. An executor is critical, and one will always be chosen by the probate court. If this happens, the money will be paid to the person or persons you appoint as trustee. Role of your trustee Once the executors have collected the assets and paid the debts of the estate, the executors role shifts to the role of trustee. An Executor/Personal Representative is named in a Last Will and Testament, often times referred to as a Will. Posted by Graham Legal | No Comments on When the Beneficiary and Trustee are the Same Person. This is somewhat similar to a person choosing a personal representative for the estate that he has. Can I appoint the same person as executor (personal representative), trustee, and guardian? The executor is going to act more like a liquidator while the trustee is going to work more as a business manager so that things can be worked out properly. © 2021 Mark A. Role of a Trustee But whether they should be the same individual can depend on several factors. While that is common practice, it bears some inquiry whether it is the proper practice. However, you can name anyone you like to serve as your successor trustee. etc,to Administrator-General has. An executor of a will is the person named in the will who is responsible for arranging the allocation of a deceased person’s property and carrying out their wishes. A Trustee is the person appointed in your Will to manage and administer any trusts created in accordance with the terms of your Will. An executor is the person who handles a deceased person's estate, making sure all property is distributed according to the decedent's wishes and that all debts are paid. Purposes of Trusts . These trusts may exist because of the operation . An executor manages a deceased person’s estate and a beneficiary is an individual who will inherit that property. In most cases your Trustee is the same person you appointed as the Executor of your Will. You might want to name a different executor and successor trustee to provide checks and balances when it comes to settling your estate and trust. Trustee vs Executor - YouTube. We recommend that you appoint the same person or persons as both executor and trustee when writing your Will. If you have read a will, you may have noticed that there is a person (or people) appointed as the “executor and trustee” of the will. This article attempts to highlight these differences. You have the option of having more than one trustee or executor. What to consider during the estate planning process, Visitation transportation agreement for divorced parents, Reducing expenses associated with managing the estate and working with professionals, Preventing miscommunication between the executor and the trustee because only one person is involved. An executor manages a deceased person’s estate and a beneficiary is an individual who will inherit that property. He holds the coveted CFP designation from The Certified Financial Planner Board of Standards in Washington, DC, and is a Registered Investment Adviser with the state of South Carolina. A revocable trust is one that you retain control over, acting as the primary trustee during your lifetime. The advantage of this arrangement is that it does not require a particular person to act, such as a named partner who was named in a will but has since retired. This involves working under court supervision to a great extent. They can also refuse to take responsibility. When the Beneficiary and Trustee are the Same Person. andtm~~. The executor is not responsible for assets inside a revocable living trust. The executor (sometimes referred to as executrix for females) is responsible for managing the affairs of and settling the estate, including initiating court procedures and filing the deceased's final tax returns. N.B The Executor and Trustee can be the same person or different individuals. Trustees are then responsible for holding the monies and looking after them for the benefit of the beneficiaries. Estate documents name an individual to manage and distribute someone's assets after they die. The trustee holds the assets in trust until they are to be distributed to the beneficiaries or transferred to any trusts created under the Will. The same person can generally serve as both estate executor and trustee so long as the appointed individual meets the independent legal capacity requirements to act as an executor and as trustee. You already know who you want to act as the executor of your overall estate, and it may cross your mind to use the same person as your trustee. Now, you may wonder who you should put in charge to act as the trustee after your passing. On behalf of Mark A. 24/7 LIVE CHAT. Your successor trustee will step in to run the trust for you if you become incapacitated, and will distribute the assets contained in your trust to your named beneficiaries after your death. If you have children under 18 when you die, then any property you leave them automatically goes into trust. "Personal representative," "executor" and "trustee" are some of the titles you'll encounter. Essentially, it is up to you to decide who you feel best suits the positions. In New York, many people establish their estate plan with the trustee and executor being the same person. Role of your trustee Once the executors have collected the assets and paid the debts of the estate, the executors role shifts to the role of trustee. Brown, P.S., Attorney at Law. Under the law, it allows the appointment of one executor to be appointed in the will. It’s quite common arrangement to have an executor and the trustee same Person but having the same individual depends on several factors. Will-makers commonly appoint one or more persons as "executor and trustee" of my estate. When does it seem spouses are headed for divorce? An executor is usually a short-term position and will often last only 12 to 18 months. Naming the same person to both roles can help minimize time and expenses. A trustee is given temporary ownership … A trustee is given temporary ownership of certain assets to invest on a beneficiary’s behalf. The executor is responsible for the estate. If you name separate individuals as the executor and trustee, you may create a checks-and-balances relationship that keeps each party in line. What Does an Executor Do? It can take time to come to the right decisions, and in some cases, you may have a difficult time knowing which is right. Your executor is the person that deals with the winding up of your estate on your death, in accordance with the terms of your Will. The executor will gather and identify your assets and do the same with your debts and liabilities. An executor is the person who handles a deceased person's estate, making sure all property is distributed according to the decedent's wishes and that all debts are paid. Julie Ann Garber wrote about estate planning for The Balance, and has almost 25 years of experience as a lawyer and trust officer. Nothing needs to be probated to transfer to a living beneficiary, and this eliminates the need for an executor. When an executor has completed all of their duties, their role ends. Executor all decisions and acts must be carried out together and What is a Trustee? The same person can also be the trustee for a trust set up under the will. When it comes to making your appointments, you may want to discuss this detail with a Washington estate planning attorney who can provide insight into the duties and necessities of these roles. With one person in the role, there is less of an opportunity for misunderstanding and discord. This person will need to have the skills to make investment decisions and to do whatever else that is needed to help protect the assets in the trust. Your successor trustee will take over management of your revocable living trust should you die or become incapacitated to the point where you can no longer manage it yourself. There’s really no right or wrong answer, but I think it’s a good idea to have the same person fill the roles of executor, guardian, and trustee. It eliminates the need for communication and the potential for misunderstandings between two people because one person is handling the whole process. When making your Will, it is likely you have appointed one or more people an Executor and Trustee; they may be friends, family members or perhaps a trusted professional. And your trust that you appoint as the same person as the executor of will... Managing your estate plan with the terms of the deceased carries many of the titles you 'll.... 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