Death and the trustee

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Many thousands of people are executors and/or trustees of their friend’s or family member’s will but what does this mean and what does it involve?

The role of executor is distinct from the role of trustee although often they will be the same person. The executor is the personal legal representative of the deceased and has the responsibility of carrying out the deceased’s last wishes (as contained in the will). They are responsible for burying the deceased and gathering in all of the deceased’s property and paying all of their debts and expenses from the deceased’s assets. Once this has been completed they then have the job of paying or transferring the remaining assets to the beneficiaries named in the will.

The trustee on the other hand is the person responsible for administering any trust created by the will. In other words they will hold the property or asset concerned on trust, in accordance with the terms of the will, for the beneficiaries named in the will.

The most common example of this is what is called a ‘life interest’ which is where the deceased gives someone (called the life tenant) the right to use and enjoy the deceased’s property (or part of it such as a house) for the rest of the life tenant’s life. The life tenant does not actually own this property rather they only have the right use and enjoy it during their lifetime.

The property is owned and held by the trustees named in the will on trust for the beneficiaries named in the will who will receive that property once the life interest ends on the death of the life tenant (or in some cases sooner depending on the terms of the will). The use of life interest wills is very common with married or de facto couples where both partners grant this right in favour of each other.

Our thanks to Jared Cains for writing this article