What are Executors?
If the person who has died leaves a will,
In this case one or more ‘executors’ may be named in the will to deal with the person’s affairs after their death. Any number of executors can be appointed but only four can apply for the grant.
The executor applies for a ‘grant of probate’ from a section of the court known as the Probate Registry. The grant is a legal document which confirms that the executor has the authority to deal with the deceased person’s assets (property, money and possessions). They can use it to show they have the right to access funds, sort out finances, and collect and share out the deceased person’s assets as set out in the will.
If the person who has died didn’t leave a will.
As a last resort the Public Trustee (an independent public body appointed by the Lord Chancellor) can act as an executor. It may be appropriate to appoint the Public Trustee as executor if there is no one else able and willing to act as executor or where a beneficiary is an incapacitated adult or dependent child likely to outlive both parents and other close relatives.
Appointing an executor
You should choose an executor to carry out your wishes, as stated in the will. Executors can be beneficiaries under the will and often people appoint their spouse, civil partner or children as executors. Check with your proposed executors that they are willing to take on this role before naming them in your will, as it can involve considerable responsibility.
Consider naming more than one executor in case one dies before you.
It may also be easier for the executors if there is more than one person to share the work and the responsibility. The executors may have to deal with any day to day administration of your estate in the period before it can be distributed. Executors can claim from the estate for expenses incurred in carrying out their duties.
If the estate is large or complicated, there may be advantages in appointing a professional executor such as a solicitor, accountant or bank manager. A professional executor will charge for the work that they do and these costs will have to be met from your estate. Ask for details of the likely costs before appointing the executor to check that you are comfortable with them.
Choice of executors.
You should consider 3 main categories of potential executors:
- individuals – perhaps suitable family members younger than you/
- professional people (suitably experienced solicitor or accountant.)
- Trust corporations.
They all have advantages and disadvantages which need to be considered in the light of the circumstances. You should take into account the following:
- availability
- suitability
- willingness to act
- any possibility of conflict or dispute.
- The possibility of predeceasing (a reserve executor could be provided in your Will.)
- the size, nature and location of the estate, and the extent and complexity of burden placed on executors.
- The costs involved.
Where professionals are chosen as executors, they may be appointed as individually named persons or as a firm.
Executors like trustees, are in a fiduciary relationship so they cannot make a profit out of their office. They may only claim out of pocket expenses. Therefore, a charging clause must be included, authorising them to charge for all work done by the executors or their firm in administering the estate.
There is no legal objection to a beneficiary being appointed as an executor where he or she is the sole beneficiary, or where the estate is small or uncomplicated.
Understanding the Role of an Executor
An executor has to carry out certain tasks in order to legally fulfill the obligations of the task. An executor you should therefore:
- obtain a copy of the medical certificate indicating cause of death and a formal notice from the doctor if the family members to not wish to do so
- register the death at the local Registry of Births, Deaths and Marriages if there are no family members wishing to do so. The death must be registered in order to obtain the death certificate. Nb. It is advisable to get more than one copy as it will be needed when dealing with Insurance companies, pension providers etc
- could be responsible for making sure any last wishes such as organ or body donations are carried out. The job might also include planning for the funeral or cremation and arranging for payments for the services provided
- make sure you have the last original will of the deceased. The testator should have notified you as to the location of this
- locate all the heirs. This might seem like an easy task and if there are just a couple of children and they are the only ones named in the will, it is easy. If there are numerous heirs and they are named in the will either collectively or individually, the executor must locate each and every one
- make and exhaustive list of all the assets of the estate, from personal to real property, to bank accounts, investments etc. and also all the debts including credit cards, utility bills, loans etc
- it is advisable to open a separate account into which money paid into the estate can be credited. This will prevent estate monies being confused with personal finances
- notify all businesses of the death e.g. utility companies credit card companies, banks, council tax offices, social security etc
- make sure that all the deceased’s debts are settled before the estate is distributed to the beneficiaries
- if there are minor or dependent children, the executor could be responsible for arranging for their care and placement. The deceased might have their wishes stated in the will but if not, the courts might need to be involved in the placement. If there are pets, the executor will need to care for them and make arrangements for their continued care
- pay any Inheritance Tax necessary
- you must declare the value of the estate to HMRC on an Inheritance Tax return, within 12 months of death
- payments of the deceased’s tax is your personal responsibility. Failure to submit an accurate account to HMRC may leave you open to personal liability or penalty
- contact the local Probate Registry to either obtain the Grant of Probate or the Grant of Administration
- distribute the contents of the will making sure that if anything is to be left to minors, a trustee has been named
- after you have completed all of your tasks, you will need to produce a full set of accounts for the beneficiaries showing the estate assets and liabilities, administration income and expenses and how the estate has been distributed
A key consideration for you will be the extent to which you wish to involve professionals to help and support you in this role.
Wills, Estate and Probate Services can deal with the administration of the estate for the later circulation to the beneficiaries if you so desire.
In addition we have a clear professional duty of care to explain clearly in advance the basis of our charges, so you know what to expect.
If you are considering asking someone to serve as the executor of your estate, be sure you understand the duties and responsibilities of being an executor. Being the executor of an estate is not really an honor, it’s a difficult, time consuming job that carries some legal liability. An executor will probably work long, hard hours for at least a year or two getting your estate settled and they could quite possibly be a very unpopular person to your heirs.