Whether to Appoint an Independent Trustee or an Executor.

Most people will appoint family members, or friends as an executor to a will, or indeed a trustee in respect of trusts that may be appropriate for their affairs.

We deal with a number of contentious matters, and often the issue is the problems with an executor or a trustee, as they are at odds with the rest of the family.

In our experience, often lay persons do not understand the difference between their roles as an executor, and their roles as a trustee, and the responsibilities and the laws that follows from them.

This raises family tensions, and in most serious cases ends up in litigation, or a claim that perhaps need not have arisen, had some thought been given to the appointment of an independent executor or a trustee.

Executors, as a general rule, should remain neutral in their dealings with an administration of an estate.

There are also potential issues, particularly with regard to discretionary trusts, where the trustee has the decision-making powers which are not being dealt with, or reflected in the true terms of the trust.

A particular issue can often surround the disposal of a property in the value, or how it is disposed.

Often in respect of disputes, it is necessary to apply to the Court, or at least begin Court Proceedings, to ensure the removal of executors or trustees, which can often be expensive, and reduce the value of the estate and the trust.

We often see situations where in respect of these contentious matters, they could have been avoided and the necessary stress, timeline and most importantly the costs, could have been avoided, if the family decided to appoint a professional executor or professional trustees, which is likely to include probate practitioners, and also accountants and possibly financial advisors relating to the estate. One advantage, in our experience is that these professional advisors can indeed where necessary seek specialists’ advice from accountants, in the case of properties often from estate agents or surveyors.

In essence, the benefit of an independent trustee, is that their impartiality means that they approach problems with no personal agenda, making it easier to resolve impasses. Then impartiality means that it can be easy for a disgruntled beneficiary to express their concerns, and for those concerns to be taken onboard and resolved.

Eventually if resolution cannot be obtained through the normal discussions, the trustee or executor can ask the Court for guidance, if a decision is partially significant and/or contentious.

We at 3clegal have often been put in this situation, and it is rare that we had to apply to the Court for a declaration, as we are able to try and negotiate through the complexities of the family issues in order to bring about a satisfactory solution.

It will not come as any surprise however, that in appointing the above there is likely to be costs, and in order for the costs to be considered, in our experience the family need to understand this from the outset. In respect of trustee appointments, the estate administration can sometimes be complicated and long winded, and one should also remember, that a trust will continue for the length that the objective has been created, and this may be for many years, until the trust has ended, or indeed in respect of a beneficiary of a trust, may have to pass before the trust can come to an end.

In respect of wills and estates, we often see a situation where a lay person has been appointed as an executor, which may at the time the will was created, been a viable option, however, the will and the person making the will (the ‘testator’), has continued to live for a period of time before passing. This often means that the actual objectives of the will have long since past, and we often see in these situations, is that the executor simply decides to do nothing, or there is a valid will. This often leads to considerable delays, and the beneficiaries not receiving their inheritance entitlement for a sometime. Frustration sets in, particularly if there are any property issues, and an application to the Court has to be made to remove the executor/s. In these circumstances, we find that the Courts will want to appoint a professional executor, and therefore if this was considered whilst the original will was made, this may cause unnecessary complications, delays and costs.

Further advantages in the appointment of independent executor or trustees, are that they should be truly independent with no history with the family.

They should be able to work with everybody, and trusted by all involved.

They should have the time and experience to commit to looking after the estate administration or trust/ property.

They should be well connected, and able to call on independent professional advisors, if required.

Have good mediation skills. Often personal skills which will allow negotiations and relationship building, these should not be underestimated particularly where families have feuded over a long period of time.

Somebody who is transparent about the necessary costs, so that they can be clear from the outset.

Should you require advice or assistance with the above, please do not hesitate to contact us.

If you would like any further advice, please do not hesitate to contact us:
3C Legal Limited
Fax: +44 (0) 1684 294865
Mobile +44 (0) 7707 644738