A frequently encountered client instruction in private client is the naming of executors and trustees. When writing a Will it is unavoidable, essential information. One problem that pops up however is when a client wants to name their dear friend who is of a similar age. It can be a delicate subject to broach, but what if your dear friend of a similar age loses capacity? Or what if they themselves die?
It is important to name someone you trust, someone who can administer your estate and distribute your assets in a way you would have wanted, however they must be around and able to do it. One solution is to name replacement executors, but these are all thoughts to have in advance.
If an individual loses capacity, or dies, then they will be unable to discharge their duties as an executor. They will be unable to gather in, realise or distribute assets. So, while they may have known which broach is to go to which daughter and which watch to which son, they will be unable to distribute the same.
When a Will is straightforward, for example an equal split of the estate between ones children, this might be easier to mitigate but what about those more complex arrangements? Say for example you want to put your estate into a discretionary trust, to protect it from one frivolous spender or the serial-divorcee or another, who is going to administer it? A discretionary trust could run for 125 years serving not just your children, but your grand-children or even great-grandchildren. Is that spritely friend going to be up to the task?
Some other thoughts to have now include how large your estate is going to be, how long it may take to administer, and where you would like arrangements (such as a discretionary trust) to be in place for years or even decades at a time, serious thought should be given to who should be the trustee(s) administering the fund.
If administration is to last a generation, ample thought should be given to who should be steering the process. If your husband is to be your executor and trustee, then which child or children are to replace him? If they are unable or unwilling, who then?
One option is to make a professional appointment, but this will have cost implications. Is the trust going to be complicated to administer? Do your trustees know their way around income and capital gains tax returns so as to administer it alone? If you have concerns, why not make a professional appointment alongside your chosen executor or trustee? The professional appointment will be drafted with thought given to succession, for example if members of a firm change, and offers dispassionate expert input. The costs are often balanced out with savings on tax and the like when professionals are instructed to administer an estate. Conversely, with a balance struck between the dispassionate professional and a relative or friend who knows who was to receive each of your personal effects appointing one of each can be hugely beneficial to some estates. This is certainly a point to discuss with an experienced private client solicitor who can help give you a steer.
These are all valid lines of enquiry and thoughts that should probably be followed through to their conclusion. What this post is trying to convey is that while it is important to put arrangements such as Wills and Lasting Powers of Attorney in place, they should never be rushed. They represent plans and contingencies to be put in motion when you cannot give further guidance and so they should be methodically thought through.
There is a lot to think through and the devil is so often in the detail. To discuss your available options and to plan matters affecting your estate, get in touch.