When you write a will with Farewill, it includes some general provisions that grant additional powers to your executors and trustees. Here, we’ll cover what these are and why you need to know about them.
STEP is a global professional association that promotes high professional standards in this area of law. It stands for the Society of Trust and Estate Practitioners.
When you write a will using our online will writing service, it contains provisions relating to the responsibilities of your executors and trustees. These have been professionally drafted and approved by STEP and are used widely by other professional will writers and solicitors. You can find these under the heading ‘General Provisions’ in your will.
According to the law in England and Wales, your executors and trustees have the following obligations:
Your executors must make sure your estate is distributed according to your will. Your trustees must look after any gifts that may not be delivered immediately because they are held in trust – likely for someone under 18.
However, many solicitors and will writing professionals choose to leave additional powers and provisions. This is because the law in England and Wales is quite limited and doesn’t include everything we would expect executors and trustees to be able to do.
Executors and trustees would be breaking the law if they put their own interests before those of your beneficiaries. But sometimes, the laws that try to protect the independence of executors and trustees can get in the way of what the beneficiaries want.
Property is a good example of this. Under the basic laws of England and Wales, an executor or trustee cannot usually buy property belonging to the estate or trust. The STEP provisions relax these rules. This enables executors and trustees (who may also be beneficiaries) to buy property, imposing a series of safeguards to comply with when the sale takes place.
Your family and friends may not be used to administering estates, so there’s more chance of them making a mistake than a professional executor or trustee.
Under the laws of England and Wales, if an executor or trustee does something that causes the beneficiaries to lose out, they are held financially responsible for providing compensation. This can even mean that they have to pay the beneficiaries out of their own pocket. However, it’s generally accepted that it’s unfair to hold friends and family to the same standards as professionals. So, under the STEP provisions, they are not.
To be held responsible for a loss, family and friends acting as your executor or trustee must have either been fraudulent or dishonest. Fraud is committed when someone tricks somebody else to make a gain. Dishonesty covers acts like lying, cheating or stealing.
Professionals are held financially responsible for fraud and dishonesty too, but they are also held responsible negligence and carelessness. Negligence is committed when someone doesn’t take the care required of them by law (e.g. meeting common professional standards) and that lack of care causes harm or financial loss. Carelessness is very similar to negligence.
But there are some exceptions...
Family and friends acting as your executor or trustee would be held responsible for loss if their behaviour is found to be fraudulent or dishonest. Fraud includes acts of trickery or manipulation for personal gain, while dishonesty covers things like lying, cheating or stealing.
Professional executor services are held to the same standards, but their responsibilities also include negligence and carelessness. If a professional fails to follow the common standards expected of them and this causes harm or financial loss, they can be held to account.
The STEP provisions give your executors and trustees more choice over how they manage gifts you leave to children.
For smaller gifts, it can be sensible to pay the money (or entrust an item) to the child’s parent or guardian and let them look after it, rather than having your executor become a long-term trustee. If the child is 16, they may be mature enough to receive the gift themselves. If the gift is larger, then making payments to the child’s parent or guardian while the child is under 18, or to a mature 16 year old, may be appropriate too.
The STEP provisions make such flexibility possible. And, while the executors and trustees must always put the child’s interests first, they can make payments without having to ask what the money will be used for, unless there is reason to be suspicious.
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