WILLS

What is an Executor of a Will?

Appointing an executor is an important part of the terms of your will.

The executor of a will is the person appointed (by the will of the deceased) to deal with the administration of the estate. They will collect in all assets, pay any liabilities, and finalise the deceased’s income tax and any inheritance tax liabilities to. They will then pay any cash legacies, and pay out the residuary estate.

Who can be an executor of a Will?

Anyone can be an executor of a will, as long as they are over 18 and of sound mind.

Can a beneficiary be an executor?

Yes, a beneficiary can be an executor – and indeed often are. For example, a ‘typical’ will for a married couple will often gift everything to the surviving spouse, who will also act as executor. If there are children (grown up) the backstop provision is often then to gift everything in equal shares (after ‘second death’) to the children who might also act as executors.

How does an executor administer an estate?

In simple terms, your executors will:-

Establish the estate – ie gather date of death values for all assets and liabilities
Notify beneficiaries of their entitlement to the estate and confirm that they will be dealing with things as executors
Notify relevant agencies – eg DVLA, passport, and so on
Pay Inheritance Tax – if IHT is due they will have to pay this (from estate funds – not their own money). This needs to be done BEFORE probate is granted
Apply for Probate – this can now be done largely online with the Probate Registry. Probate is the Court Order granting your executors with the authority to deal with your estate. Probate is sometimes used to describe the process of administration of the estate
Call in assets and pay liabilities – once probate is granted your executors will then have the authority to deal with the actual administration of your estate. This might include closing bank accounts, selling shares, and of course perhaps selling your house.
Income Tax – they will liaise with HMRC to finalise your income tax affairs. This is done in two bits: 1) is to ‘date of death’ and then separately for (2) the ‘period of administration’ of your estate
Pay legacies – they will be responsible for paying any cash legacies that appear in the will
Residuary estate – this is the bulk of the estate and your executors are responsible for ensuring that the correct amounts are paid to the nominated residuary beneficiaries.
Letter of wishes – your letter of wishes can provide both your executors and any guardians with useful guidance (without being legally binding on them)

Throughout the period of administration, it is considered good practice for executors to keep beneficiaries regularly updated. Administering an estate can take months (even years), hence the need for updates so that beneficiaries know what is happening.

Who is best to have as executor?

When you are choosing your executor(s), the following are useful things to give thought to:-

Are they willing to do it (it is a potentially time consuming process that can last for months or even years)?
Are they well suited to the role (eg organised, and good with ‘paperwork’?
Is your estate likely to see disagreement (eg if family members don’t get)? If you anticipate possible problems you should be cautious about appointing family or friends as you will be putting them in the firing line! Consider appointing a profession if problems are likely (a probate solicitor for example)
Age and health – are they likely to be OK to deal with your estate at the time of your death? Remember that we make a will very often many years before we die! So your chosen executors may perhaps be your age or younger ideally.
Locality – if you have a house to sort out it may be helpful if your executor(s) live nearby

Should a family member be an executor?

You don’t have to have a family member as executor, and do remember that it is a very ‘big ask’ of whomever you choose.

Does an executor have to sign the will?

No – your executor(s) do not have to sign your will. And, you do not have to show them the will either if you don’t want to.

To find out more, read our ‘How to sign a will‘ article.

Does my executor have to follow the terms of my will?

Yes – most definitely! Your executors are personally liable to ensure that the terms of your will are carried out. If they fail to do so – beneficiaries can sue them!

However, any letter of wishes that you leave is purely guidance for your executors and should not seek to legally bind them.

Does my executor have to use a Probate Solicitor?

There is no requirement for a ‘lay executor’ (eg friend or family member) to instruct a probate solicitor. They can do everything themselves if they want. Equally, if your will does appoint a family member or friend as your executor, they can (on your death) give the estate administration to a probate solicitor to do the work on their behalf.

Make sure your chosen executor is happy to take on the substantial ‘paperwork’ of probate.

Does my executor have to get Probate?

This will depend on your estate – ie what assets there are, and their value. Probate is the only recognised legal authority that permits executors to, for example, call in assets (close bank accounts and so on).

If an estate is very straightforward and of low value (less than £5k) it may be possible for your executors to administer the estate without getting probate.

Does an Executor of a Will get paid?

Lay executors can claim ‘out of pocket expenses’, but they cannot be paid for their time dealing with the administration of your estate.

If your will appoints professional executors (eg probate solicitors) then they can charge their time for providing their services. The estate will pay their fees. And, you would expect the probate solicitors to advise your beneficiaries upfront of the likely fees, and be kept updated on their costs throughout.

What if my executor cannot act?

Your chosen executors are not bound to act if they don’t want to. If that’s the case, they can ‘renounce probate’ which basically means they formally resign the appointment before it is ever sealed in law (by probate being granted).

Alternatively, they can take the appointment but have a professional do the work on their behalf – eg a probate solicitor. This does still burden them ultimately with the responsibility, even though someone is doing the leg work for them.

If there is no replacement executor in your will then the law dictates who can apply in the absence of an executor appointment succeeding in your will. In simple terms, it will be beneficiaries who can apply.

An application by a beneficiary results in a Grant of Letters of Administration (not a Grant of Probate). And, they will be called an Administrator not an Executor.

What is intermeddling?

If an executor wishes to renounce probate, they must not ‘intermeddle’. This means doing things that are considered part of the administration of the estate. This is not entirely black and white, but as a rough rule of thumb some form of instruction or control of assets would be considered intermeddling (eg telling a bank to pay money to them). Gathering initial information (establishing the estate) would not necessarily be deemed intermeddling.

Are executors responsible for debt?

No – not personally. Your estate is responsible for all payments.

Are executors personally liable?

Yes! And this is why you should think very carefully about who you appoint as executors. Dealing with the administration of an estate can be time consuming (volume of work), and spread out over a prolonged period.

If your executors make an error on an estate to the loss of a beneficiary them may be held personally liable for that loss!

Are executors and trustees the same thing?

No, the roles of executors and trustees are different. But, if your will does appoint trustees they will often be the same people (albeit 2 different roles).

Your executors deal with the administration of your estate. Trustees will hold money or assets on behalf of your estate if any trusts arise in the will – eg gifts to minors, or perhaps a life interest trust of a property you owned.

To find out more, read our ‘What is the difference between an Executor and Trustee?‘ article.

Want to know more about being an executor?

If you have more questions about the role of an executor, who you should appoint, who you shouldn’t appoint – do reach out to our expert wills and probate solicitors. You can leave a comment below, email wills@qlaw.co.uk, or call 03300 020 365.