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Executor vs Attorney

[What’s the difference?]

In your estate plan you will nominate people you know + trust to important roles. Two of those roles are your “executor” and “attorney”

These roles perform different duties and at different times…for one, your executor only steps in post-death whereas your attorney acts during your lifetime.

This blog covers the role of executor and attorney, why they’re important, and how to find the best person for the job.

So what does an executor and attorney actually do?

Executor

  • Nominated in your Will
  • Role starts after your death
  • Manages your deceased estate
  • Pays your liabilities + calls in your assets
  • Distributes your estate per the terms of your Will
  • Defends any litigation against your estate

Attorney

  • Nominated in your Enduring Power of Attorney
  • Role starts if you lose capacity (can no longer make your own decisions)
  • Role ends on your death
  • Attorney makes decisions on your behalf
  • Types of decisions depend on the terms in your Enduring Power of Attorney
  • Decisions may be personal matters (eg. health care, where you live) or financial (eg. buying or selling assets)

A “good” executor or attorney

Who is a good candidate to be your executor or attorney?

This is different for everyone. It depends on who’s in your VIP circle, your values + preferences, asset structure, and other personal circumstances.

You might have the same person in both roles or different people.

The biggest of big ticket items…your executor and attorney should be someone you trust completely. [we don’t like to deal in “shoulds” but trust here is critical…]

Executor

Trust them to…

  • Carry out your wishes
  • Act in good faith in handling your estate
  • Understand their legal obligations + duties
  • Be available to manage your estate
  • Seek external advice when needed
  • Follow your directions + guidance when appropriate (written in your Letter of Wishes)

Attorney

Trust them to… 

  • Act in your best interests
  • Put your rights and needs first when making decisions for you
  • Respect your wishes, values, + preferences
  • Understand their legal obligations + duties
  • Be available to make decisions for you
  • Be confident in discussing your care with care providers
  • Make sound decisions under pressure
  • Seek external advice when needed

Who to appoint as your executor and attorney is part of the overall strategy of your estate plan. So too are the the terms included in your Will and Enduring Power of Attorney to give your executor and attorney the powers and authorisations they may need to appropriately deal with your estate and make decisions. As part of the estate plan journey, we give our clients advice and guidance on what the best arrangement may look like for our client and the options available to achieve their goals for their estate plan.

If you want more information please contact us or download The Complete Estate Plan Guidebook below.

Download The Complete Estate Plan Guidebook to:

  • take the overwhelm out of estate planning
  • know what documents you need to protect yourself and your loved ones
  • appoint the best suited people to control positions
  • step-by-step guide to sort your estate plan
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