Guardians, executors and trustees - explaining the jargon of wills
Making a will can feel overwhelming to many, but you will be glad you did it in the end, writes rural solicitor Karen Walsh.
Dear Reader,
It is very wise that you and your husband are considering putting Wills in place. It can be overwhelming. The best thing to do is just take it step by step. It is a very important document to put in place and you will be glad you did it in the end.
In making a Will, executors should always be appointed, while one executor can act alone, it is always advisable to appoint at least two persons to fill this important role. In most cases, the same persons are appointed to act as both executors and trustees, though different persons can be appointed to the two roles.
Probate is the legal term for a procedure that gives the person named in a testator’s Will, as the executor, authority to carry out the testator’s wishes, as set out in the Will. In order to administer the estate, the executor must apply for probate.
This involves providing full details of assets in the estate of the deceased person. The probate office must be satisfied that the Will is formally valid. If so satisfied, the probate office will issue the Grant of Probate. This, in effect means that the Will has been proved.
The executor can then proceed to administer the estate. The Grant of Probate, the executors’ document of title and authority, is then submitted to all banks, insurance companies and other institutions, where assets are held by the deceased.
It has to accompany documents lodged with Tailte Eireann where Title to land or other property is being registered in the name of the new owner. The Department of Agriculture will always insist on obtaining either the original or a sealed and certified copy of the Grant of Probate before dealing with change of ownership or basic payment entitlements, herd numbers, etc.
Trustees are the persons charged with the responsibility of dealing with and protecting the assets of another, often someone who has died for the benefit of named beneficiaries, usually children of the deceased.
Accordingly, trustees have an important role to play. For that reason, it is vital that the most appropriate person be selected to fulfill the role of trustee. In deciding whom to appoint as trustees, a person should choose someone they know, like and trust, choose someone who has the ability to make the right financial decisions for the benefit of the beneficiaries, and where there is a farm involved, choose someone who is experienced in and has a background in farming.
Where there are infant children involved, the role of the trustees is to manage and look after the assets until those children reach the age specified in the Will, when they become entitled to the assets in their own right.
Where a testator has children under the age of 18, he/she should always appoint guardians in respect of those children. This can be a difficult decision. Guardians take responsibility for the welfare of the infant children. The same persons do not have to be appointed as trustees and guardians.
It is advisable that a person chooses guardians whom the children already know and with whom they have some form of relationship. This might be difficult where children are very young and have not yet formed strong relationships. Any person who has made a Will should bear in mind that the Will can be changed at any time.
It is prudent and a basis of courtesy that if the person was thinking of making a Will, one should always discuss the matter with potential guardians in advance, ensuring that the person being chosen is happy to take on the role.
There is little point in nominating someone who is reluctant or actually refused to fulfill such an important role. In practice, brothers or sisters (and their spouses and partners) are most often chosen to fulfill the role of guardians and/or trustees.
