Even a relatively simple will can have terms in it that the average person doesn’t usually encounter in day to day conversation. If you’re thinking about making your will, it is valuable to get a handle on these terms and what they mean for how your assets will be dealt with after you pass away.
We’ve explained below some of the key players who may be named in your will and what their roles and responsibilities may be.
Your executor (or executors) carries out your wishes as expressed in your will and has fundamental control of the estate process. This is not necessarily the same person that receives your assets, but they are legally responsible for making sure your wishes are carried out. It’s important to remember that an executor may have, and need, some flexibility in how they deal with your estate.
For example, it may be beneficial for the estate to grant the executor discretion to sell assets of the estate in the most beneficial manner, having regard to capital gains and other taxes.
Beneficiaries are the people you name to receive all or parts of your estate when you die. When thinking about your beneficiaries you should also consider the situation where one or more of your first choices pass away before you. Where long periods of time pass between reviewing estate planning documents this can be quite common. So you should have in mind not only your first choice beneficiary but also a second and third. This is particularly important where children and grandchildren are involved.
You may also wish to consider leaving certain assets to specific individuals. In which case we can draft your will so that it is very clear which assets will pass to which beneficiaries – and in which order.
It’s common for people to have concerns about whether a particular beneficiary is capable of managing the assets or money they might receive in a will. As a result, some funds may be held on trust for beneficiaries who you feel are not yet old or capable enough to manage a gift themselves, or because of their financial position are likely to lose any gift. That is when a trustee is required.
The trustee is then responsible for managing the assets or money in a way that benefits the beneficiary and protects their interests. As well as naming the trustee you may need to set guidelines around how the trustee can manage the money and possibly in time transfer control to the beneficiary when they are ready.
If you have children under the age of 18 a guardian is simply the person you nominate in your will to take on your responsibility for caring for your children.
Your choice of guardian should ultimately be made by considering who you are comfortable will bring up your children in a similar manner to that which you would have chosen. This does not necessarily mean your closest relatives or the children’s grandparents. The choice is yours. Your children may not necessarily live with the guardian, but your guardian will decide on who your children live with, what schools they attend and similar critical issues.
If you have specific wishes in relation to your children we can assist you in preparing a document, separate from your will, that outlines these wishes in more detail for your guardians.
When considering the key players you will select to include in your will it is useful to consider how well you think they may work together. You should be confident that your guardians and executors/trustees are people that will co-operate to carry out your wishes and make the right choices for the benefit of your children or other beneficiaries.
Please contact any one of our estate planning lawyers below if you would like any further information.