WILLS

Who should I choose as Executor of my Will?

Being the executor of a will is a time-consuming – so be sure the person you choose as your executor is happy to take on that role.

A will is one of the most significant legal documents we ever sign. And yet, so many of us never do (make/sign a will), as a result, much of the population dies without a will (known as ‘intestate’). When we die without a will, the law not only decides who gets what, but it also decides who is entitled to administer our estate (ie to act as our ‘executor’). So, don’t leave it to chance, make a will and choose for yourself who acts as your executor!

What is an Executor?

Your executor is the person who obtains probate after you die, and who then deals with the administration of your estate. Following your death, your executors will first of all:

register your death; and
arrange your funeral

With this done, the administration of your estate (often called ‘probate’) can begin. In its very simplest of terms, this will include:

establish the estate – get values for all assets and liabilities
pay IHT – if any is due
obtain Probate (this is the court order that formally appoints your executors)
realise all assets (this may include selling your house) and pay all bills
pay fixed cash legacies
pay residuary beneficiaries
provide estate accounts
deal with ‘loose ends’
carry out any informal things that have been included in a letter of wishes

There is therefore lots for your executors to do, and you should be sure they are willing, able, and ready to take on the very considerable burden and responsibility to deal with all of this for you.

How do I appoint the Executor of my Will?

Your will makes the specific appointment of your executor(s). There is usually a clause setting out who this will be.

Can I appoint more than one Executor?

Yes you can! But think about the logistics of this given that they need to agree on everything that happens.

Is it a difficult job being an Executor?

Is it a difficult job laying bricks?! No for a small garden BBQ, yes to build Buckingham Palace! But the strict answer is that executors do not have to have legal training.

Time is perhaps the biggest burden on an executor. But, be aware also that your appointed executors carry with the appointment a personal financial liability to get things right. If they make a mistake, they may be personally liable to reimburse the estate. This is one of many points people perhaps ignore when appointing a family member or friend, rather than some who is qualified and most able to deal with things for them – for example a solicitor.

What should I think about when choosing Executors?

The sorts of things to think about when choosing your executors are:-

do they agree to be your Executor?
are they the right sort of person to be executor (eg organised)?
do they have the time to be your executor?
are they a good age (see below)

Can I have substitute Executors?

Yes, you not only can be your invariably should have substitute executors. This is to cover a situation where the first chosen can not or will not act.

What happens if one or more of my Executors die?

If one (where there are others) of your executors dies with or before you, then the remaining named executors can take the grant of probate.

If none of your executors survive you are deemed to have died ‘partially intestate’ – meaning that the executor appoint fails, but the rest of your will remains valid.

In these circumstances, the law sets a list of those next in line entitled to take probate. This is essentially someone with an entitlement to the estate under the terms of the will, or thereafter by way of intestacy.

If one of your executors dies after the grant of probate has been issued, but there are other executors still able to act, the administration can continue.

If ‘power is reserved’ to another executor, they can be appointed part way through probate. However, if executors appointed in the will ‘renounced’ probate, they can not be joined in later down the line.

Find out more about what happens if one or more Executors dies

What is a good age for someone to be my Executor?

Think about the likely age of your chosen executors when you die, not how old they are when you make your will. So, lots of people make wills when they are young and have children (quite right that they do too). And, those new parents will often appoint each other, else ‘parents in substitute’. There is so many eventualities your will can ever cover. And so, whilst parents acting as your executors will clearly not happen if you yourself live to a ripe old age, sometimes being happy that new wills can be made as live moves on is something we have to accept.

Can I appoint my husband or wife as my executor?

Yes, you can, and most married couples do.

Can a beneficiary of my Will be an Executor?

Yes they can, and if things are simple (eg it is your spouse) this is usually OK.

When should a Beneficiary not be Executor to my Will?

Be aware that being an executor can be a complicated, time consuming, and job carrying a lot of responsibility. So, if your estate is likely to be particularly complicated think carefully about appointing a lay beneficiary. Also think carefully if the chosen beneficiary has personal issues with other beneficiaries as this is a classic example of where problems can arise.

Can I appoint just one of my Children as Executor to my Will?

Yes you can, but how will your other children feel? Will they perhaps feel like they have been left out. And, if delays happen, might you be creating a potential for ill feeling between your children? Appointing just one child/sibling is often a recipe for disagreement.

Can I appoint the same people in my Will to be both Guardian and Executor?

There are lots of reasons not to do this (covered in a separate article). In short, being an executor is admin and legal stuff. Guardian is being replacement ‘mum/dad’. Mixing the two can create a substantial burden, and so at a very difficult time (if guardians are needed it defines that both parents have died before any children have reached 18).

Learn more about Guardians

Is an executor the same as a trustee?

An executor deals with the administration of the estate. Trustees will then hold assets on any trusts that arise in the will – eg for minor beneficiaries. Although they are separate roles, they are invariably the same people.

Are you sure you want a loved one to have to act as your executor whilst they grieve?

Are Executors personally liable if they get things wrong?

Yes! And that is why you should think carefully about appointing a friend or family member. That personal liability is real and can result in executors being sued if they get things wrong at the expense of a beneficiaries share of your estate!

This is one of a number of reasons to consider appointing professionals to deal with the administration of your estate, rather than burdening your loved ones with the time and liability that goes with it.

Can my Executors get help from a Solicitor?

Yes, if you appoint lay executors and they decide they don’t have the time or inclination to do the actual work then they can appoint solicitors to do it on their behalf. This is a comfort for many when making a will – meaning they can appoint family members of friends and simply leave it to them to decide what if any solicitor they use.

Can I appoint my Solicitor to be my Executor?

Yes, you can appoint your solicitor to be your executor.

What is the benefit of having a Solicitor as my Executor?

The benefits of having a professional executor include:-

you do not then burden family of friends
they are experts at what they do
your beneficiaries have the protection to tight regulation if things go wrong
things should (if you chose the right solicitor) be over quickly and efficiently

What if my Beneficiaries are unhappy with a Solicitor Executor?

In those circumstances, our regulator treats beneficiaries as pseudo clients of the particular firm meaning they all of the protection that goes with that including the ability to complaint to the Legal Ombudsmen.

What does an Executor appointment look like in a Will?

Leaving aside the peculiarities of the difference of executors and trustees, the will appointment clause should look something like:-

“I APPOINT as my Executor my wife JEAN SMITH or failing her my friend WILLIAM BRADSHAW

Will my Executors get Paid?

No, lay executors only receive out of pocket expenses. If you appoint professional executors (eg a solicitor) then they are entitled to charge their normal fees.

As a point of comfort, do remember that if you appoint solicitor executors, they will agree all costs up front with your residuary beneficiaries. So, there will be no unexpected surprises. The solicitors costs will typically be paid direct from estate funds – again with the agreement of your residuary beneficiaries.

Who decides how much a Solicitor Executor gets Paid?

A solicitor executor is obliged to notify all beneficiaries at the outset what their charges will be, and then keep them updated throughout if things change. Ultimately, if the beneficiaries are unhappy with the fees they are entitled to rely on the regulatory bodies including the Legal Ombudsmen.

Who can help me with queries on Executors?

We hope you have found this guide helpful. And, do remember it is just that (a guide) so please don’t rely on it (or any comments) as legal advice. If you would like our help – we’d love to hear from you! So please reach out by leaving a comment below, emailing us, or calling. Our expert wills solicitors would love to hear from you.