AA Legal Documents

Appointing executors and guardians

Contents

Executors

If a person is taking the trouble to make a Will, it is sensible for them to choose their own executors and/or trustees. These are the people who are left to manage and administer the testator's (someone who makes a Will) affairs after death and should therefore be expressly appointed in the Will. If the testator fails to appoint executors, executors are appointed by the court to manage the estate. What this means is that those relatives who benefit from the estate according to the rules of intestacy (see 'Dying without a Will') may apply and be appointed as executors. By making a Will, you are given the opportunity therefore to choose the people whom YOU would like to administer your estate when you die.

The testator can appoint any number of executors, but a large number may make administration cumbersome, so it is recommended that there should not be more than 3 or 4 executors. One executor is usually sufficient to administer the estate. In a small, straightforward estate, the major beneficiary is often appointed as the sole executor. Difficulties can arise when a single executor dies or becomes ill and is not able to continue managing the estate, so it is a sensible precaution where a single executor has been appointed to provide for a substitute to take their place if the person originally appointed dies or becomes ill.

Executors should be chosen carefully. If the estate is uncomplicated, trustworthy relatives or family friends would be suitable. However, should the estate be complex, it may be sensible to appoint a professional executor together with the relative or friend. Whatever decision is made, the testator should check whether a particular person is prepared to act and seek professional advice on the appropriate choice of the executor.

Trustees

If a trust is created under the terms of the Will, then the testator must appoint both executors to manage, administer and distribute the assets, and trustees to run the trust which will come into effect. Where executors and trustees are required, it is practical and convenient to appoint the same people to perform both functions.

The trustees will need to obtain a good receipt for all the trust property, which means that they will have to show that they have discharged their obligations regarding distribution of the assets by handing over the correct trust assets, in their shares, to the correct recipients.

Paying trustees

Where a professional person is appointed, it is usual to include a clause that will allow that person to charge reasonable remuneration for acting in a professional capacity.

Appointment of guardians

If the testator has any children younger than 16, they should consider who would be responsible for those children on their death. Equally, the testator may be concerned about any future children who might be under this age at the time of their death.

Where a dispute arises over the care of children, the court has the final say. This means that, after considering all the facts and taking into account all the circumstances, the court will make an appropriate order appointing a guardian to look after the minor child or children. The intention in your Will to appoint guardians may be considered by the court.

It is always important to communicate with the person or persons that one intends to appoint as guardian. After all, they should be aware of the position in advance and can indicate whether they are willing to act or not. Provision should also be made for the costs of the children's upbringing. This may be achieved by giving the trustees suitable powers to use the capital and income of a trust fund set up by the Will to meet the needs and expenses of the children. You could also appoint the guardians as the trustees of any such trust fund set up by the Will for the children.

Any parent who has parental rights and responsibilities for their child (generally both parents if married or divorced and the mother if never married) may appoint one or more individuals to be the child's guardian. Such an appointment must be made in writing, dated and signed by the parent. The appointment need not be by Will, but a clause in the Will is sufficient. A person can also cancel the appointment in writing, provided the cancellation is signed and dated even if the original appointment was in a Will.

The appointment of the guardian takes effect on the death of the parent. If there is a surviving parent with parental responsibilities, then the rights of the surviving parent and the guardian appointed by the Will co-exist.