Executor and trustee of a Will

Who can be an executor?

Any person over 21 years of age can be an executor including someone who is a beneficiary in the Will. Ideally an executor should be someone who is capable of managing money.

Lawyers may be engaged to help with the Probate process. However  it is the executor that must be able to make financial decisions about the estate’s assets eg when to sell an asset. So it helps if the executor is a person used to making decisions about money.

Small Estates

For an estate that is worth less than $50,000 the Public Trustee can be called on to administer (ie manage) an estate in place of an executor (see: www.mlaw.gov.sg/content/minlaw/en/our-work/community-legal-services-group/public-trustee-office.html).

Most people will have to find someone else to act as executor.

The executor’s role

An executor and trustee has several responsibilities. It can take an executor several months to fully discharge his/her responsibilities or it could take years.

An executor’s responsibilities begin from when a person passes away. If person who passes away has no immediate family members than his/her executor has to arrange for the funeral service, cremation, etc.

A person appointed executor and trustee will usually engage lawyers to help with the application for Probate. They also advise him/her on how to carry out his/her responsibilities.

To apply for a Grant the executor must provide to the lawyers the original Will  and death certificate. Also he/she will have to find and provide a record of assets and liabilities as part of the Probate application process.

The executor’s power to act comes from the Grant. Without the grant he/she is not able to  transfer land or get release of money from a bank.

An executor of a Will must collect all of the assets of a deceased person once probate is granted. This is then used to pay off all of the estate’s debts.

The trustee’s role

As the executor settles the debts of the estate and moves to distributing the estate’s assets he/she begins acting as trustee.

All estate debts must be paid in full before the estate can be fully distributed. Otherwise an executor is only putting himself/herself at risk.

If there is income tax or estate duty payable he/she has to make sure these are paid in full.

Sometimes an executor may make a distribution to a specific beneficiary even before all debts are paid. For instance, this may happen if there is a ‘wasting’ asset (eg a car) given to a specific beneficiary.

A trustee can distribute the assets after all the assets are ‘brought in’ and debts paid in full. Then the estate can be finalised and wound up.

As part of the process of distributing assets, gifts and bequests a trustee will want to seek a release from beneficiaries.

Where there are infant beneficiaries

Where an estate has infant beneficiaries an executor and trustee can find himself/herself remaining as trustee for many years.

A beneficiary has to be an adult to be able to release a trustee from his or her responsibility towards him/her. So infant beneficiaries cannot give a good release to a trustee.

Sometimes a Will may expressly authorise a trustee to pay an infant beneficiary’s share to a parent or guardian. This may happen if the gift to an infant is of a relatively small sum, say $5,000. If so then a trustee has an option. The trustee can pay the monetary bequests to the infant’s parent or guardian and finalise the estate after that.

Otherwise, a trustee cannot choose to “transfer” his/her responsibilities by simply paying out an infant’s inheritance in full to his/her parent or guardian.

Please see our post on ‘Appointing a Guardian in a Will’ for further explanations on the interaction between an executor & trustee and a guardian.

5 April 2019

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