When preparing a Will, many people want something simple. They may say, “I just want a plain English Will that says who gets my assets. Why does it need pages of trustee powers?”
It is a reasonable question.
The answer is that a Will can be easy to understand without leaving out important legal protections. Trustee powers are included in a well-drafted Will to give your executor and trustee the authority they may need to properly administer your estate, deal with your assets and protect the interests of your beneficiaries.
A Will can appoint someone to administer your estate and, where necessary, hold property on trust for beneficiaries. The powers given to that person can make the administration of your estate considerably easier and more flexible.
What is the difference between an executor and a trustee?
An executor is the person you appoint to deal with your estate after you die. Their responsibilities can include identifying your assets and liabilities, paying debts and expenses and distributing your estate according to your Will.
A trustee is someone who holds and manages property for the benefit of another person.
The same person will commonly act as both executor and trustee. This is particularly important where an inheritance cannot, or should not, simply be handed directly to a beneficiary.
Your Will therefore needs to give that person sufficient legal powers to carry out the job you have asked them to do.
Why are there so many trustee powers?
Trustee powers can cover a wide range of practical situations.
For example, your executor or trustee may need authority to:
- sell, retain or manage property;
- collect money owed to the estate;
- invest estate funds;
- insure and maintain property;
- deal with shares, investments and other financial assets;
- borrow money where appropriate;
- deal with businesses or company interests;
- distribute assets directly to beneficiaries rather than selling everything;
- manage an inheritance for a child or other beneficiary; and
- postpone distribution where there is a proper reason for doing so.
These powers are not included simply to make your Will longer. They are designed to give the person administering your estate the flexibility needed to deal with the circumstances that actually arise after your death.
The difficulty is that nobody can predict exactly what your estate will look like when you die.
You might own a house today, but have sold it in five years. You might acquire shares, start a business, buy another property or have debts that need to be dealt with. A well-drafted Will needs to work with your circumstances at the time of your death, not just the circumstances when you sign it.
What if I have a simple estate?
Even a relatively simple estate can require trustee powers.
For example, suppose you leave everything to your two children, but one child is aged 15 when you die. That child cannot simply receive and manage a substantial inheritance in the same way as an adult beneficiary.
Your trustee may need to hold the inheritance, invest it and use money for the child’s education, maintenance or other appropriate expenses until the child becomes entitled to receive the capital.
Trustee powers can provide the practical machinery needed to manage that situation.
Trustee powers do not necessarily mean a complicated Will
Some people hear the words “trustee powers” and immediately think that their solicitor is recommending a complicated testamentary trust.
That is not necessarily the case.
A Will can contain trustee powers without creating a complicated testamentary trust structure. The powers can simply give your executor and trustee the authority necessary to administer your estate properly.
The important distinction is between making your Will legally comprehensive and making it unnecessarily complicated.
A good solicitor should be able to explain each provision in ordinary language so that you understand what it does and why it has been included.
The goal is a simple Will that works
There is nothing wrong with wanting a straightforward Will.
In fact, your Will should be written so that you can understand it.
But there is a difference between a simple Will and a Will that leaves out important legal powers. Removing trustee provisions simply to reduce the number of pages may create problems for the person administering your estate later.
The better approach is to have a Will that is plain English, appropriate to your circumstances and legally effective.
A good Will should not just say who receives your assets. It should also give the people responsible for your estate the tools they need to carry out your wishes.
Here to Help
Contact us now if you are considering making or updating your Will for free no-obligation telephone advice about why trustee powers are included in your Will and which provisions are relevant to your circumstances.
