29 August 2024
Executor vs Attorney: understanding the key differences in estate planning
By Yasmin Knock, Solicitor, Hayes + Storr.
When we start planning for the future, the terms “attorney” and “executor” frequently arise. It is often wrongly assumed that the role of attorney and executor are one and the same.
Both are a position of trust, and the same person can hold both roles, which keeps matters straightforward. But if not, it helps to be clear about the distinct duties and obligations. Crucially, the best approach is to make these arrangements in the first place. This article breaks down the differences between attorneys and executors.
Attorneys
Giving someone ‘power of attorney’ means empowering them (via a legal document) to help you make decisions, or to make decisions on your behalf. These can include financial decisions or even health and care decisions should you become incapable of doing so yourself.
An attorney is often under the impression that they can continue dealing with a person’s assets when that person dies. However, a power of attorney is only valid during your lifetime – when you pass away, your attorneys no longer have the authority to manage your affairs.
Executors
An executor is someone you appoint in your Will to carry out your wishes after your death. You can choose friends, family members, professional executors, or a combination of these (up to four).
It is the executor’s duty to administer your will. The executors cannot deal with your assets during your lifetime.
An executor’s duties can include:
- Registering the person’s death and arranging the funeral
- Calculating and paying any inheritance tax if necessary
- Applying for probate
- Collecting and safeguarding the estate assets
- Settling any outstanding debts or liabilities from estate funds, as well as paying any tax on qualifying estate income
- Distributing the estate to your named beneficiaries
Unlike attorneys, an executor may only know about their appointment if you have discussed it with them directly while you are alive. You can change who you have appointed as executor by updating your will.
In many cases, an executor will need to apply to the court for authority to deal with the estate’s assets. This is known as probate in England and Wales. The executor can then use this authority to withdraw funds, sell property or transfer assets to beneficiaries. Once the estate has been wound up, the executor’s duties are discharged.
Planning Ahead
In summary, an attorney acts while you are still alive and/or if you become mentally incapable of managing your affairs and protects your interests during your lifetime, whereas an executor’s role begins after your death and ensures your wishes are carried out in accordance with your will.
Nobody wants to think about what happens when they pass away or become mentally incapable of managing their own affairs. However, planning ahead can alleviate stress for you and your loved ones in the future, as well as ensure that your affairs are dealt with appropriately during your lifetime and after your death.
Our solicitors are here to support you, offering advice on preparing Lasting Powers of Attorneys and Wills. For more information email Yasmin.knock@hayes-storr.com or call: 01328 863231 and ask to speak to our private client department.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
