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Who should I appoint as an executor in my Will?

Nov 24, 2017

Writing your Will is one of the most important things you will ever have to do, and it is just as important that you understand the role executors play and who you should choose.  Kevin Horn, Private Client Partner, explains here what an executor does, how administering an estate works and why it may be prudent to appoint a solicitor as one of your executors.

What is the role of an executor?

When a person dies, their estate needs to be managed and distributed accordingly.  If  that person left a Will  then they will have named executors whose responsibility it is to administer the estate.  The size of the estate and whether it passes under the terms of the Will determines whether the executors will need to apply for a Grant of Probate to give them the authority to do this.  If there is no  Will, then there will be no executors appointed and the role of administering the estate will be assumed by the closest relatives of the deceased who are appointed as Administrators by the Probate Court. The role of the administrator is broadly the same as that of the executor but in the absence of a Will, the intestacy rules determine the distribution of the assets in the estate. The process can be vastly more complicated if a person dies intestate, which is why we would always advise that a Will is made to avoid the additional burden which can be placed on your loved ones at an already emotional time.

The role of an executor falls into a number of areas:

  • Registering the death and obtaining death certificates,
  • Notifying the necessary authorities and organisations of the death,
  • Obtaining valuations of the assets and distributing the estate according to the wishes of the deceased,
  • Selling any property, and deciding when would be the best time to do so,
  • Investigating and paying any inheritance tax, Capital Gains Tax or Income Tax due,
  • Payment of any debts,
  • Keeping a detailed record of the full asset value to demonstrate how the beneficiaries’ inheritance has been calculated and distributed.

How long does administering an estate take?

This will all depend on the complexity of the estate. The first step is to apply for a Grant of Representation, if one is required.  This document will allow access to assets and other documents to allow an estate to be distributed.  Most estates are straightforward but for complicated estates it can take some time. Executors are permitted up to a year from the date of death to administer an estate during which they are not obliged to pay out to anyone other than HMRC and the funeral expenses.. This gives them time to ascertain assets and liabilities, deal with any problems and draw up estate accounts before distributing the funds to beneficiaries.  A modest estate might be wound up before the end of the so-called executor's year but a large estate may well continue for a second or third year before the administration is finalised. A house may need to be sold. Foreign assets, ambiguities in the will, missing beneficiaries may all cause problems.

Who should I appoint as an executor?

Since the role of an executor is a complicated one, the question of who to appoint is a decision not to be taken lightly.  The executor must be aged 18 or over.  Some executors, such as a spouse or children, can be beneficiaries under the Will but care needs to be taken to ensure that this won’t cause issues in the future. Stories of executors abusing their appointments by administering the estate for their own gain are sadly all too common.  There can be up to four executors named but because they have to work together, the greater the number, the harder it can be to make decisions.  The ideal number  to have is two; that way you still have an executor if one of them dies.  The most important factor is that you trust the people you appoint to follow your wishes as stated in your Will.

Should I appoint a solicitor to be my executor?

For most people, they won’t need to appoint a solicitor as a named executor because they have relatives or friends who can administer the estate, with or without some legal advice during the process, but it is worth thinking about. A family member will be coming to terms with your passing, and so having someone dealing with the process could provide them with comfort that the estate is being managed while they grieve.  An  executor who has no experience of administering an estate is by definition more likely to make mistakes than a professional executor. If there is any challenge to the validity of the Will or the provision it makes, it is the executor who is legally obliged to deal with such challenge and so it would make sense to appoint a solicitor who will adopt a neutral approach and who can be expected to have the knowledge and experience required to enable them to deal with any tax, property and legal processes. 

There has been some recent negative coverage in the national press about solicitors named as executors in a Will  allegedly over-charging the estate for work done. In some circumstances appointing a firm of solicitors as the sole executor of a Will  or jointly with others will be the right decision but in other circumstances it will not.  In those situations where a firm is appointed they are subject to strict regulation which should avoid claims of conflicts of interests and overcharging. Heed must be taken  of the code of practice issued by The Law Society which requires solicitors to consider when a solicitor might or might not need to be appointed as an executor. At all times we must act in our clients best interests.  Here at Warner Goodman, when drafting a Will with a client, we will always explain what is best for their own situation, depending on the family members involved, the relationships between them, the size and complexity of the estate, as well as many other factors to allow us to advise accordingly as to who would be most appropriate to be executors. 

If the decision is made to appoint us as an executor we will fully document the reasons why this decision was taken and ensure that the client understands how we charge, whether that is based on the number of hours work or as a percentage of the estate.  We would always advise that when you are drawing up a Will you are open and honest with your family members and other beneficiaries so that they have an idea of what your wishes are; that way there is a better chance of avoiding conflict and unpleasantness for them when your Will takes effect.  

If you are considering making a will and you are seeking advice as to who you should appoint as executors, you can contact Kevin or one of the Private Client team on 01329 222075 or email privateclientenquiries@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.