What is an executor?
In probate, an executor of an estate is someone whom has been nominated by the deceased to deal with their assets according to a valid will. This nomination can be expressed clearly, for example: “I nominate Mr John Smith to be the executor of my will”. Or it can also be implied, for example: “I would like Mr John Smith to sell my property and distribute the proceedings accordingly”.
Been appointed executor after losing a loved one? Unsure whether to handle probate on your own, or need legal advice? Call our experienced solicitors on FREEPHONE 0800 1404544 or one of our four local office numbers for FREE initial phone advice – with no strings attached.
Accepting the role of executor and intermeddling
The appointed executor appointed can accept their responsibility by either applying for a grant of probate or ‘intermeddling’ in the estate.
‘Intermeddling’ is where the executor takes actions such as paying off a debt owed by the estate or realising an asset. Humanitarian actions such as arranging the funeral do not class as intermeddling.
An executor is not forced to accept this responsibility and is able to give up or renounce their duties – as long as they have not applied for probate or “intermeddled” in the estate already.
The executor of a will is critically important to the whole process, and it’s certainly not a role which should be undertaken lightly. If you’ve been asked to be an executor, or if you’re thinking of appointing an executor in your will, you must understand all the tasks, duties and obligations the role demands.
Intermeddling – the consequences
Even if you’re not named as an executor, or simply don’t want to act in that capacity, intermeddling has serious consequences – and anyone who has behaved in this way runs the risk of being seen to have taken legal responsibility for their actions in respect of estate administration.
Among the potential consequences of intermeddling are the following:
• you could be held as liable to both beneficiaries and any creditors of the deceased.
• you could be considered as liable for payment of inheritance tax on any estate assets you have handled, as if you were the executor.
• you may lose your right to renounce probate.
What are the main duties of an executor?
An executor of an estate in the UK has 3 basic duties:
- To collect in (and realise where necessary) the assets belonging to the deceased;
- From this collection, pay any outstanding debts owed by the estate; and
- To distribute any legacies or assets to the beneficiaries under the will.
An executor of an estate has a number of implied duties when taking on the role. For example, the executor should act with reasonable care and exercise reasonable skill as appropriate to the situation.
What Does An Executor Actually Do?
There are a long list of tasks which include:
• Registering the death with the local Registrar.
• Obtaining a copy of the death certificate and the disposal certificate, which formally allows the body of the deceased to be buried or cremated.
• Notifying asset holders (via the original death certificate or certified copy) and advising them that a Grant of Probate is being applied for. This will enable accounts, payment of dividends, etc., to be frozen at banks, insurers, pension funds and other financial institutions. This should be done as quickly as possible to avoid paying back overpaid sums at a later date.
• Notifying family, friends and colleagues of the death, and placing funeral notices in the press.
• Obtaining the most up to date version of the will, and making copies for all relevant parties. The original will must be kept intact, as any alteration or damage can invalidate it.
• Arranging the payment of inheritance tax and any remaining income tax, if applicable.
• Obtaining a grant of probate from the Probate Registry, or, if you’re applying to become an Executor after the fact, obtaining a grant of administration.
• Opening up a separate bank account for money that’s paid into the estate, such as pensions death benefits or life insurance pay-outs.
• Preparing accounts to show how the estate has been divided.
• Carrying out the funeral arrangements in line with the deceased’s wishes.
• Identifying all debts, liabilities and assets in the estate and obtaining all the relevant paperwork.
• Obtaining a Probate valuation of any properties and shares – and entering those figures in the Inheritance Tax forms
• Arranging for all debts and funeral expenses to be paid out of the estate in such a way that the beneficiaries receive the maximum inheritance.
• Distributing the remaining assets and specific legacies and gifts in accordance with the instructions set out in the will.
• Ensuring that guardians and/or trustees have been appointed where necessary.
• Liaising with banks, utilities, tax officials and credit card companies to ensure that they are aware of the death.
As you can see, the executor has to deal with complex and often onerous tasks, so you must make sure that the right person has been appointed to the role. You can also appoint a professional executor, who can undertake these tasks without any emotional involvement.
Our probate solicitors act as professional executors on a regular basis – call us on FREEPHONE 0800 1404544 for a quote today.
Sadly, however disputes between beneficiaries or complaints against executors are becoming more common.
Click here to read more about executor disputes and how our lawyers can help
What property does the executor not need to deal with?
Things that do not form part of a deceased’s estate are not included in the list of assets that an executor has to deal with. Examples of these include:
- Any property held as joint tenants (law of survivorship applies and the other joint tenant takes the whole of the property. Click here to read more about the difference between joint tenancy and tenancy in common);
- Property enjoyed as a life tenant (which will now pass to the remainderman ie whoever is entitled to inherit property upon the termination of the estate of the former owner);
- Property owned internationally;
- Policies written into trust;
- Lump sums payable under occupational or personal pension schemes;
- Death in service schemes; and
- Conditional gifts made.
Can an executor also be a beneficiary ?
The simple answer is yes, and in fact it’s quite common when it comes to probate for a beneficiary to also be an executor. Whenever that happens, the person involved, effectively has to play two quite separate roles – as executor and beneficiary.
What are risks in being an executor without a solicitor?
Beware the very real possible pitfalls of acting as an executor without legal advice.
Many people who are appointed as executors by the Will of a friend or relative are, these days, tempted to deal with probate themselves to try and save money, often encouraged to do so by friends who have done the same.
Yet the majority of these people have no idea that by dealing with an estate without legal advice they may be risking personal liability if they get something wrong – and lack of experience or specialist knowledge will not get them off the hook if a claim is made
When applying for probate, there are, however, instances where an executor can become personally liable for monies belonging to, or owed by the estate. This risk of executives incurring personal liability is not unusual, particularly in cases where there is money owed by the estate to 3rd parties and inheritance tax liabilities.
However no two estates are ever quite the same, and a variety of issues can crop up which can be risky for the executors. The following are four of the most common:-
• Incorrect Tax returns. An inheritance tax form has to be completed in respect of all estates, whether or not they are below the inheritance tax threshold. HMRC can and do apply fines if the information submitted is not complete and accurate, even if the executor did their best. Problems can apply with valuations – shares and property with planning potential, for example, can be complex to value. If you make a personal application via the Probate Registry, they will not help you to complete the forms and if you do get something wrong, you will find that as well as what could be a penal fine, it could take years for HMRC to complete any enquiry.
• Not claiming correct tax reliefs. Inheritance tax is complex – and HMRC will certainly not tell you if you fail to claim a relief or exemption to which the estate is entitled. It is possible to claim back tax paid on property and shares if they are sold within a certain time after the date of death at less than they were valued for at the date of death. Missing things like this can mean that the beneficiaries are entitled to sue you.
• Not understanding the provisions of the Will. Wills can be very complex – you might think that the terms of a Will are straightforward on the face of it, but the interpretation of many clauses can give rise to pitfalls for the unwary. In one well known case, the Will left “all for mother” – and on the facts that was taken as meaning the estate was to pass to the deceased’s wife. Leaving money to young children when they reach the age of 18 or older gives rise to a trust. How confident would you feel that you could correctly deal with that? Better to consult a solicitor who can explain to you exactly what the terms of the Will mean.
• Failing to correctly declare liabilities. It can be difficult to identify all the liabilities left by someone who has died unless you knew them well – for example, credit card debts and loans. Ensuring that executors do not become personally liable for debts of which they were not aware can be achieved very simply and a solicitor will advise you how this is done. Things are often not as they seem – in one estate, the executor thought that an insurance claim arising out of a car accident some years before had been settled, but it turned out that the insurance was invalid as the result of a technicality. the executor therefore found himself having to pay the cost of reimbursing the insurance – as the beneficiaries had spent the money given to them.
If you find yourself appointed as an executor, you should give serious consideration to instructing a specialist solicitor. They will be able to recommend steps to take to ensure that personal liability is avoided, and that all returns are correctly made.
Want to know more? Click here to read our 14 Key Reasons To Use A Solicitor for Probate
How many executors do you need?
It is possible to deal with probate with just one executor. However, given the scale of the task, and given the possibility of refusal or change of circumstance, it’s usual for more than one executor is appointed. That is not necessary the same when appointing a professional executor – is common, for example, to appoint a “partner” of the law firm without actually naming the individual partner. This covers a situation where one partner retires and is replaced, allowing the new partner to be appointed as executor.
In total, up to 4 individual executors can be named in a will.
In a situation where you have two or more two executors, each of them is legally responsible for the actions of the other or others. So, for example, if one executor incorrectly removes money from the estate for their own benefit, when they were and not legally allowed to do so, any at the executor also remains liable for this behaviour.
Feel you need legal advice? Don’t delay
Bear in mind that it’s usually far more cost effective to consult a solicitor right at the beginning, than at a later stage – we are often contacted by executors who realise late in the day that they have accidentally done something wrong and want help trying to fix it.
Paying for legal advice
The legal costs of taking advice can be met from the estate and you are not expected to pay them personally – so why risk incurring personal liability for a job that you won’t be paid for? A solicitor will give you all the advice you need to ensure the job is done properly, and of course all solicitors are obliged to have insurance in place so if there is a problem, you will never be out of pocket personally.
How much time does an executor have to complete their duties?
There is no set time period for an executor to deal with an estate. However, UK inheritance tax must be paid within 6 months from the end of the month in which the testator died. The tax must also be paid before a grant of probate is issued.
The estate cannot be dealt with until all claims owed against it are paid, 3rd parties have up to 6 months from the date of the grant of probate in order to claim any monies owed to them.
There are numerous reasons to why the administration of an estate can take longer than expected. It is usually assumed that the distribution should be completed within one year – this is however by no means a fixed rule.
How long does the executor’s appointment last?
Claims against an estate can be made at any time, so once the will is in place, the executor effectively has a role for life. It is possible to refuse to act as an executor, but this has to be confirmed in writing to the Probate Registry.
Renouncing your role as an executor
Wills that are written in England and Wales should have at least one executor appointed to carry out the deceased will owner’s wishes. Executors appointed under a will hold the deceased’s property until they have successfully applied for a Grant of Probate. This Grant allows the estate to be administered by the executors, in accordance with the wishes of the deceased.
However, just because an executor is appointed under a will, they are not forced to actually administer the deceased’s estate. Before an executor begins to administer an estate, they can give up their role – or “renounce the probate” should they wish to do so – in doing so they will no longer need to administer the estate. This process is known as ‘Renunciation of Probate’. However, the executor will not be able to renounce probate if they have begun to administer the will.
How do I renounce probate?
The Renunciation of Probate procedure is as follows:
- Firstly, you will need to prepare a Renunciation of Probate document. This must be in the appropriate legal format and you may require the assistance of a Solicitor to ensure it is correctly drafted
- An independent witness must witness your signature of the Renunciation of Probate
- Finally, send the signed and witnessed Renunciation of Probate to your local Probate Registry Office -though you may find it safer to take it there yourself
Can I remain an executor while also making a claim against the estate under the Inheritance Act?
In theory, the answer is yes. However this is rarely advisable. If anyone was to remain as executor whilst making a simultaneous Inheritance Act claim, they would have to be extremely careful how they behaved – the risks of a blatant conflict of interest between each role is high.
Therefore depending, of course on the exact circumstances of the claim, most executors would, in such a situation, sensibly renounce their role as executor.
Click here to read more about inheritance claims
How we can help you
As you can see, being an executor can be a tough job and does involve some very real risks. For this reason, unless you’re absolutely confident in your abilities to act as an executor unaided, you should consider either appointing, or at least taking advice from specialist UK Probate Solicitors.
Our highly experienced Probate team deals with estate administation both locally throughout Wiltshire, Hampshire and Dorset, and throughout England and Wales– from our offices in Salisbury, Andover, Fordingbridge and Amesbury.
In particular, we can also assist you if you are an expat but have been appointed as executor under a will in England and Wales. we have done this many times before – taking instructions by phone, email and Skype video or FaceTime.