Both an executor and an attorney have an important role to play in the areas of wills and trusts. The processes rely on each party in order to reach a conclusion, but what are those roles and what are the key differences between an attorney and an executor of wills?
The role of an attorney
In the cases of wills and trusts, an attorney looks after the interests of an individual while they are still alive. They are usually appointed when that individual becomes concerned about their health and feels that they are, or may shortly become, unable to make financial decisions for themselves.
The attorney is then appointed to make those decisions regarding immediate financial issues, together with estate planning for the future. The process should be an official one, administered under the guidance of a solicitor. Power of Attorney (POA) is then granted to the nominated individual.
Once this process has been completed, the attorney has the responsibility of dealing with the individual’s affairs. They will naturally have access to bank accounts and, therefore, it is important that an attorney is a person in whom the individual has complete trust.
Once the individual has died, the role of the attorney will cease.
The role of an executor
An executor of a will is appointed by an individual to carry out their wishes after their death. It is their task to ensure that finances, property, heirlooms and other items are distributed in accordance with that last will and testament.
If no will is in place, an executor can still act as they can distribute the estate to entitled beneficiaries.
More than one person can be appointed as an executor of a will. In many cases, two individuals, one from either side of a family will be nominated. This can be a good idea for those who are eager for their beneficiaries to see that finances and other inherited assets are being distributed fairly.
Trust is a key issue here and, once again, it’s important to ensure that an executor is appointed officially, under an agreement via a solicitor. The logical time to do this is when the last will and testament are established.
In summary, the executor of a will and testament will become active at the point when the individual dies.
When to appoint an executor vs an attorney
The key difference between an executor and an attorney is summed up in those roles. An attorney takes charge of an individual’s affairs while they are still alive. Following the death of that individual, an executor of a will or trust will step in and ensure that the terms of that will are carried out in accordance with the deceased’s wishes.
The exact point at which to appoint a power of attorney is down to the individual, but it can be a difficult decision to make. The specific point in time will come down to the individual’s preferences, but those occasions that can prompt an appointment include:
- Diagnosis of a terminal illness
- Diagnosis of an illness which impairs cognitive function, now or in the future
These are two of the most common instances, but there may be others and an appointment can be made at any time. When there is doubt over the right time to appoint an attorney or an executor of wills and trusts, it’s advisable to seek professional legal advice.
Appointing an executor of a will or trust can often be made simultaneously. However, an executor can be put in place, irrespective of whether an attorney is required.
Everyone who makes a will should put a trusted executor in position. They are necessary in order to ensure that all finances and property are distributed in accordance with the wishes of the deceased person.
Choosing an executor or attorney
In both cases, there can be more than one attorney or executor. It’s up to the individual to decide whether or not they want to share the responsibility between one, two or more specified persons.
Trust is the biggest element when it comes to considering who may act as your attorney or as the executor of your will. Because of this, most individuals will select either:
- A family member
- A close personal friend
That trust will have been built up over a number of years, and that’s the key element when it comes to a final decision. Children of the individual are most likely to become involved in either of the two roles. In those instances where there are two or more siblings, they can be nominated to share those duties.
In other cases, the individual may prefer to elect an impartial third party to undertake their future estate planning. It is possible that a legal representative can act in these instances and that’s why many choose to appoint their solicitor as an attorney or an executor.
Administering a will or trust
It’s not always easy for an individual to decide they can no longer look after their financial affairs. It’s also not a decision to be taken without professional, legal advice.
McGinley Solicitors LLP were founded in 1988 and we have 35 years of experience in dealing with future estate planning. We are professional and we are also sympathetic as we know that this can be a difficult time for all parties involved.
We have three offices based across Dublin and Donegal and, after an initial discussion, we can be flexible in terms of follow-up meetings. To get things moving, please complete our online contact form and we will get right back to you. Alternatively, give us a call.
While there are clear and distinct roles, both attorneys and executors have an essential role to play when it comes to administering wills and trusts, and it’s advisable to let your legal team ensure that everything is conducted properly.