Executor vs Attorney: What’s the Difference?
When you create an estate plan, you will usually nominate people you know and trust to take on important roles.
Two of the most important roles are your executor and your attorney. Although these roles are sometimes confused, they are completely different.
Your executor deals with your affairs after you die, while your attorney can make decisions for you during your lifetime under your Enduring Power of Attorney (EPA).
You can appoint the same person to both roles, or you can choose different people. The right arrangement will depend on your circumstances, your relationships, and the nature of your estate.
So, what exactly is the difference between an executor and an attorney?
Executor vs attorney at a glance
| Executor | Attorney | |
|---|---|---|
| Appointed in | Your Will | Your Enduring Power of Attorney |
| Acts | After your death | During your lifetime |
| Role ends | When the estate administration is completed | When you die, or the EPA otherwise ends |
| Main responsibility | Administer your deceased estate | Make decisions on your behalf |
| Types of decisions | Estate administration and distribution | Personal, health and/or financial decisions, depending on the EPA |
| Deals with your Will | Yes | No |
| Can distribute your estate | Yes, according to your Will | No |
What does an executor do?
Your executor is the person you nominate in your Will to administer your deceased estate. Their role begins after your death.
Depending on the circumstances of your estate, an executor may need to:
locate and identify your assets;
identify and deal with your liabilities;
arrange for your funeral expenses and debts to be paid;
communicate with banks, insurers, superannuation funds, government departments, and other organisations;
arrange valuations or sales of assets where required;
determine whether an application for Probate is required;
apply for a Grant of Probate where appropriate;
deal with any tax and other estate administration requirements;
respond to claims or litigation involving your estate; and
distribute the estate to your beneficiaries in accordance with your Will.
Administering an estate can be a significant responsibility, particularly where there are substantial assets, complex ownership structures, family issues, trusts, businesses, or disputes.
Your executor is not simply the person who “hands out the money”. They have legal responsibilities and need to understand and properly carry out their role.
What does an attorney do?
An attorney is appointed under your Enduring Power of Attorney. Their role is completely different from that of your executor.
An attorney can make decisions on your behalf during your lifetime, within the authority given to them under your EPA. In Queensland, an EPA can cover personal matters, including health matters, financial matters, or both.
Personal and health decisions
An attorney for personal matters can make decisions for you when you no longer have capacity to make those decisions yourself.
Depending on the circumstances, these decisions may include:
where you live;
who you live with;
what support services you receive;
what healthcare you receive; and
who provides your healthcare.
Your attorney must comply with the legal principles and duties that apply to their role and take your views, wishes, and preferences into account.
Financial decisions
An attorney for financial matters may be able to:
pay your bills and expenses;
manage your bank accounts;
make investments;
buy or sell property;
manage your business interests; and
deal with other financial and property matters.
The timing of a financial attorney's authority depends on what is stated in your EPA. You can provide for the authority to commence immediately, from a specified date or circumstance, or when you lose capacity, depending on how the document is structured.
This is an important distinction because an EPA does not necessarily mean that your attorney has to wait until you lose capacity before they can act in relation to financial matters.
What happens when you die?
This is one of the most important differences between an executor and an attorney.
Your attorney's authority under your EPA ends when you die. Your attorney does not become responsible for administering your estate simply because they were managing your affairs before your death.
Your executor then steps into the role of administering your deceased estate under your Will. This means that, if you have appointed the same person as both your attorney and your executor, they effectively have two different roles at two different stages of your life.
During your lifetime, they may act as your attorney under your EPA. After your death, they may act as your executor under your Will. The legal authority comes from two different documents, and the responsibilities are different.
Do I need both an executor and an attorney?
For most comprehensive estate plans, your Will and EPA serve very different purposes. Your Will deals with what happens after your death. Your EPA deals with decision-making during your lifetime if you are unable to make certain decisions yourself.
Having a Will does not appoint someone to manage your affairs if you lose capacity. Likewise, having an EPA does not determine who inherits your estate after you die.
If you lose capacity without an appropriate EPA in place, your family may need to apply to the Queensland Civil and Administrative Tribunal (QCAT) for the appointment of a guardian or administrator, depending on the decisions that need to be made.
That can mean your family has to deal with a legal process at a time when they are already dealing with a difficult situation.
Can the same person be your executor and attorney?
Yes. There is no requirement for your executor and attorney to be different people.
For some people, it makes sense to appoint the same trusted person to both roles. For others, choosing different people may be more appropriate.
For example, you might want:
your spouse to be your attorney because they understand your wishes and are available to support you during your lifetime; and
an independent person to be your executor because they are particularly well suited to administering your estate.
Or you might have one person who is ideally suited to both roles. There is no universal answer.
The important thing is to consider who is best suited to each role and why.
Who makes a good executor?
Your executor should be someone you trust to take on the responsibility of administering your estate.
Consider whether they are:
trustworthy and responsible;
organised and capable of managing paperwork;
available to deal with your estate when needed;
comfortable communicating with professionals and organisations;
able to make decisions and deal with difficult situations;
willing to seek professional advice when necessary; and
capable of dealing fairly and appropriately with your beneficiaries.
The right person does not necessarily need to be a lawyer or financial professional. They do need to be someone you trust to take your responsibilities seriously.
Who makes a good attorney?
Choosing an attorney requires a different set of considerations. Your attorney may be making deeply personal decisions about your care and wellbeing, as well as significant financial decisions.
You should consider whether they are someone who:
you trust completely;
will act in your best interests;
respects your values, wishes, and preferences;
understands their legal responsibilities;
can make sound decisions under pressure;
is comfortable communicating with doctors, carers, banks, and other organisations;
is financially responsible if they will manage your finances; and
is willing and available to take on the role when needed.
You also need to think about practical issues. For example, appointing someone who lives overseas may create difficulties if they need to deal with your bank, property, healthcare providers, or other organisations.
What if I don't have anyone suitable?
You don't have to appoint a family member. Your attorney or executor can be someone else you trust and who is appropriate for the role.
In Queensland, there are also circumstances where professional organisations can be appointed as an attorney, including the Queensland Public Trustee for financial matters.
The important thing is to choose an arrangement that works for your circumstances, rather than simply appointing someone because they are your closest relative.
Your executor and attorney are part of your overall estate plan
Choosing your executor and attorney is only one part of the planning process. The terms included in your Will and EPA also matter.
Your Will needs to give your executor the authority and directions they need to properly administer your estate. Your EPA needs to give your attorney the appropriate powers and authorisations to make the decisions they may need to make on your behalf.
You may also want to consider how your Will works alongside your:
superannuation;
life insurance;
property ownership;
trusts;
business interests;
These documents and structures need to work together as part of your overall estate planning strategy.
So, who should you appoint?
There is no single “best” executor or attorney. The right person depends on your family, relationships, assets, wishes, and the complexity of your affairs.
You might choose the same person for both roles, or you might decide that different people are better suited to each responsibility. What matters is understanding what each role involves before you make your appointment.
Your executor looks after your estate after you die. Your attorney looks after you during your lifetime.
Getting those roles right can make a significant difference to how your affairs are managed when your family needs certainty most.
If you would like advice about choosing your executor and attorney, or want to review whether your current arrangements still suit your circumstances, book a heart-to-heart initial consultation with Sun Wills & Estates