Attorney Or Executor?

In her latest blog, Timms Sara Hilliard discusses the differences in the role of an attorney and that of an executor….

Attorneys

An attorney or attorneys are appointed by a donor (the giver of the power) under a General Power of Attorney (GPA) or Lasting Power of Attorney (LPA). An appointment may also have been made under an Enduring Power of Attorney.

A GPA only operates if the donor still has capacity. LPAs and EPAs operate for a lifetime, unless revoked.

An appointment is made to enable an attorney to have power over a donor’s finances or to make decisions about their welfare.

It is an onerous position and the donor of the power must trust whoever they appoint implicitly.

An attorney acts on the donor’s instructions and in the event of an incapacitated donor, they must always act in the donor’s best interests and in accordance with the Mental Capacity Act 2005.

Once a donor dies, the attorney’s power ceases and provided the donor made a Will, the executors then step in to manage the estate. If there is no Will, an administrator is appointed. Attorneys often think that they can continue to administer to the estate on the donor’s death, but this is not the case, unless they have been appointed as an executor.

Executors

An executor’s appointment only becomes valid after the person whose estate it is has died. That person would have to make a Will to appoint executors.

It is the executor’s duty to administer the Will and to wind up the estate in favour of the entitled beneficiaries. The executor cannot act during the testator’s lifetime (the person making the Will).

Unlike attorneys, an executor may not know they have been appointed until after the testator’s death as a Will is a private document and only comes into force after the testator’s death. As such, they may only know about the appointment while you’re alive if you discuss it with them directly.

Wills can be changed over time, and that includes who is named as an executor.

For most estates, an executor will consult a solicitor to help them administer when the time comes for the estate to be administered. It is almost always necessary for them to apply to the Court for authority to deal with the estate’s assets. This is known as Probate in England and Wales. Without this authority, the executor may not be able to withdraw funds, sell property or transfer assets to beneficiaries. Once the estate has been wound up and paid out, the executor’s duties are discharged.

Specific And Separate

The roles of attorney and executor consist of specific and separate responsibilities;

• An attorney is bound to act in the donor’s best interests; the executor must act in the best interests of the beneficiaries.
• Both are in a position of trust and often they can be the same people, which keeps things straightforward. If not, it helps to be clear about where these distinct duties and obligations begin and end.

Importantly, the best approach is to make these arrangements in the first place.

In summary, an attorney protects your interests while you’re still alive and an executor will administer your will when you die — making sure your wishes are carried out.

If you are thinking of making a Will or Lasting Power of Attorney, please contact me on 01332 364436 or via my e-mail s.hilliard@timms-law.com.

Sara Hilliard
November 2020