What does the Executor of a Will do?
Dealing with grief when a family member or close friend dies is hard. When you find yourself also having to deal with the deceased person’s affairs it can be even more challenging. Dealing with your own emotions and all the legal jargon and processes involved can make for a very difficult time. Especially as being the Executor of a Will comes with a great deal of responsibility both legal and financial. For this reason, many people hand it over to a professional but if you are planning to do it yourself it is important to understand what it all means and what the implications are. This Blog sets out to help you by explaining the roles and responsibilities of the executor without using too much jargon.
The Role of the Executor
The Executor has the responsibility of carrying out the deceased person’s wishes as stated in their Last Will and Testament.
The role carries both legal and financial responsibility for ensuring the correct administration of the estate.
The Executor can be held liable if mistakes are made when distributing inheritance or failing to pay the correct Inheritance Tax due.
The Executor does not get paid for carrying out these duties. Reasonable expenses, however, can be claimed from the estate prior to the inheritance being distributed to the beneficiaries.
The Executors Responsibilities
The responsibilities are numerous and include:
- Applying for the Grant of Probate (if needed)
- Locating the Will.
- Ensuring the estate is correctly distributed in accordance with the deceased’s wishes.
- Identifying and settling all assets and debts before distributing funds
- Paying any Inheritance Tax due on the estate within the correct timeframes
- Finalising the Income Tax position up to the date of death and for the period post-death until distribution
What powers does an Executor have?
The first thing to be aware of is that an Executor has a statutory duty of care to administer an estate.
The 2000 Trustee Act states that Executors are obliged to act in the best interests of the beneficiaries to avoid loss or injury to the estate.
When the Will is located and the Grant of Probate the Executor(s) have the authority to access and manage the deceased person’s assets.
How do you decide who to appoint as your Executor?
Your Executor should be a confident person who can deal with the legalities they will encounter. It must be someone who you trust implicitly to act on your behalf. They need to be able to follow instructions and deal with legal jargon so they need to be of a reasonable level of intelligence. They also need to be diplomatic and prepared to settle disputes and find solutions. In addition, the person you appoint needs to be organised as there can be a load of paperwork to sort out, file and understand. Finally, they need to have the time to devote to the process.
It is advisable to have more than one named Executor so that the process can be shared. You can name up to four if you choose to.
While most people tend to choose a spouse, family member or civil partner, anyone can be appointed to act as Executor. However, to apply for probate, the person needs to be 18 years old a the time of applying.
Many people appoint a professional to act as their Executor to save loved ones from what can be a very stressful burden. There are estate administration professionals who deal with this or you can appoint your Solicitor or Will Writer. Check the fees before you agree as it all comes out of the estate and reduces the inheritance.
Can an Executor also be a beneficiary?
Yes, they can, it is perfectly legal to do so.
At what point in the process do Executors pay out to the beneficiaries?
Before any inheritance can be paid out the estate accounts need to be produced. This means that all the assets and liabilities need to be accounted for. Once that is done all debts and liabilities need to be settled and only then can the beneficiaries be paid. There are some circumstances where beneficiaries can be paid an interim amount, but I recommend you take advice before doing this.
How much information do Executors have to pass on to beneficiaries?
There is no legal requirement for the Executor to keep beneficiaries informed of the progress of processing an estate. Beneficiaries are entitled to know if they have been named in a Will, what they have been left and how much (if any) inheritance they are due to receive. Requests for further information do not have to be complied with. It is, however, not a bad idea to keep the lines of communication open.
Can beneficiaries demand to see a copy of the Will?
Sharing a copy of the Will with the beneficiaries is at the discretion of the Executor and beneficiaries have no automatic right to see it.
Once probate has been granted the Will becomes a public document and copies can be requested by anyone who applies to Probate Registry.
Can an Executor be challenged by anyone?
There are sometimes situations where beneficiaries do challenge the Executor of a Will and it is possible to remove an Executor from administering an estate.
Beneficiaries can challenge an Executor when it is believed that they are in breach of their legal duties. There are numerous reasons why this could happen. They include situations such as a conflict of interest, delays in processing the estate or distributing the funds or financial issues where it is believed that the Executor should have taken proper financial advice.
There are occasions when the Executor has to sell a property owned by the deceased. While this can only happen if there are no clauses in the Will that prevent it, the sale price can often cause friction between the Executor and the beneficiaries. If the property ends up being sold for less than the market value the Executor could find themselves accused of failing in their legal duty to act in the beneficiary’s best interest and the result could be a claim made against them.
As you can see, the role of the Executor can be a challenging and stressful one. However, it should also be stressed that not every situation is difficult, many are straightforward and require little more than time, organisation skills and diligence.
If you have any questions about Wills, Probate or estate administration please don’t hesitate to contact us here.
