Wills and trusts are estate planning tools that allow individuals to transfer their money and property to others when they die. It is possible to have both a will and a trust, especially if you have a larger estate.
Carrying out your loved one’s final wishes should be a priority for everyone involved. However, in most cases, not everyone has an equal say in interpreting and implementing these wishes.
The executor of the Last Will and Testament plays a major role in administering the will. This role includes:
- Gathering the deceased’s accounts and property
- Paying off any debts
- Managing money and property
- Distributing money and property as stipulated in the will
The same is true for trust administration. The trustee is the sole person responsible for managing, investing, and distributing the money and property in the trust. The trustee will follow the instructions laid out in the trust document.
Imagine you are the executor of a will or the trustee of a trust. You are responsible for ensuring that the trust and estate administration goes as planned, possibly with the help of a lawyer. You may choose to include other family members, but that is entirely up to you. Bringing other family members to your meeting with the estate attorney can improve transparency and reduce conflict. The attorney-client relationship, however, is limited to you. You are the only one who can give the lawyer instructions and the only one they have a legal obligation to listen to.
Key Roles in Will and Trust Administration
Listed below are some of the key roles in will and trust administration.
- Testator: The person who creates a Last Will and Testament to be carried out upon their death.
- Trustmaker: This person, also called a grantor, settlor, or trustee creates a trust.
- Executor: This person is appointed by the testator to fulfill their wishes following their will. Usually, the executor is chosen when a person writes their will. However, if they should die without a will, the state where they live may choose an executor.
- Trustee: The person who administers a trust on behalf of a trustee.
- Beneficiary: The person, persons, or business entity receiving accounts or property from the trust.
- Heir: The person or persons entitled to receive property from a decedent under a state’s default laws if a person dies without making a will.
- Fiduciary: A person who is granted legal authority to act in the interest of another person. Executors and trustees are fiduciaries. Though they get their legal authority from the testator, trust maker, or the court, their fiduciary duty extends beyond the estate. They must also act in the best interests of the beneficiaries.
The Attorney’s Role
When you hire an estate attorney to help you with your role as the executor or trustee, you are the client. The attorney-client relationship extends solely to you. You are the only one the attorney has a legal duty to and takes direction from.
If you are also a beneficiary under the will or trust you are administering, it is important to know the boundaries of this relationship. The attorney is only representing you in your capacity as the executor or trustee. The attorney will answer questions and assist you with acting in that role, but will not handle any issues or give you any advice as a beneficiary of a will or trust.
The boundaries of this relationship should also be made clear to any family member attending the meeting with you and the attorney. The attorney only represents you, acting as an executor or trustee, and no one else.
In your fiduciary role as the executor or trustee, you should maintain a reasonable level of communication with the beneficiaries and keep them informed of the progress of the will or trust administration. To facilitate this communication, it may make sense to invite at least some of the beneficiaries to your meeting with the attorney, especially if the estate or trust administration is complicated. This provides an opportunity for the attorney to answer questions and explain the terms of the will or trust first hand. It also makes it easier on you, as you will not need to remember everything to relay the message to the beneficiaries.
Though the meeting with the attorney is a great setting for open communication, there are limits to what the attorney can say and do. As mentioned above, the attorney can only follow instructions from and give legal advice to the client. The attorney may be able to answer basic questions from the beneficiaries about the administration process. However, the attorney can not give legal advice to the beneficiaries.
A beneficiary is always welcome to hire their own attorney. Sometimes administering a will or trust can become contentious if a beneficiary claims their rights are not being protected. The beneficiary’s attorney may communicate directly with the fiduciary’s attorney, offer advice, or handle other tasks.
If you have been named an executor or trustee and need help navigating the process, we invite you to contact us to assist you.