Introduction
This is one of a series of articles about wills and probate. You can find an overview of the probate process and an explanation of the legal terms in the first article of this series.
This article explains what executors have to do and how they are appointed.
What is an executor
An executor is a person legally responsible for the administration of the estate of someone who has died having made a will (in legal terms, known as the testator). Estate is simply a word that means the assets and debts of the deceased.
Executors are the personal representatives of the testator.
Very generally, administering the estate is the process of identifying the contents of the deceased's estate, collecting them together and then distributing them as closely as possible in line with the deceased’s wishes in his or her will.
The job of an executor is very much one of creating and managing paperwork. It requires writing to, and chasing up various parties, and meticulous record keeping.
How is an executor appointed?
Usually, the person making the will nominates one or more executors in his or her will, having already asked each whether he or she is willing to act.
But being named in someone's last will and testament as an executor does not necessarily confer automatic appointment. Nominated executors have to apply for a grant of probate to be given recognition in law of their powers.
Probate is the process that proves that the will is valid. Without it, executors rely on the validity of the will to authorise their actions. If the will was invalid or if the nominated executor was ineligible to hold his position, then the executor would be acting without power, and if he made a mistake, he could be pursued for damages by creditors or beneficiaries.
How soon after death can an executor act?
A nominated executor can usually start to collect information about the estate as soon as the testator dies, but until a grant of probate is issued through a Probate Registry, banks and other institutions that hold assets are unlikely to allow him or her to collect in the assets.
Who can be an executor?
An executor must be nominated in the will.
An executor cannot be younger than 18 years old. If the will nominates someone who is a minor at the date of the testator’s death, his parents or guardians can apply to become administrators. The minor then has the right to apply to be an executor from the date of his 18th birthday - if the administration of the estate has not already been completed.
What is the maximum number of executors?
A grant of probate can be issued to one executor, or any other number up to a maximum of four.
The reasons that most people nominate more than one executor are that having other executors reduces the risk that one might not take up the position (whether through death, ill health, or personal choice).
If the will names more than four executors then some of those people must either choose to renounce their right to apply, or choose to reserve their right to apply. The reservation is made by signing a document known as a ‘power reserved’ letter. If one of the executors with grant of probate dies, decides to step down, or is otherwise unable to continue administering the estate, a reserve executor can then be appointed.
If the will names multiple executors, but only one person wishes to take out a grant of probate, it is wise for at least one of the others to sign a power reserved letter, just in case the appointed executor cannot complete the administration of the estate.
Substitute executors
In your will you can also appoint a substitute executor, who becomes nominated only if one or all the named executors does not take up the position (or later retires).
Administrators
If no living executors are named in the will, or if the executors named can’t or don’t wish to act, or there is no will, then one or more beneficiaries can apply to act as an administrator. A beneficiary is appointed an administrator once a ‘grant of letters of administration with Will annexed’ is given.
An administrator effectively performs the same role as an executor, but is unable to act in any way until a grant of administration is given.
As for executors, the maximum number of administrators of an estate is four. The minimum number is two. A sole administrator may take out a grant only where none of the beneficiaries is under 18, or where the will does not create a life interest.
Unless we mention otherwise, you may assume that the rules for administrators are the same as for executors.
Can one executor act without the others?
A single executor can carry out most of the administration of the estate alone.
In practice, and if possible, it is usually easiest if only one person takes on the tasks of administering the estate on a day to day basis. That is because having a single point of contact is usually easiest when dealing with the other parties involved.
However, executors are jointly responsible for the actions of any of them, regardless of what any individual executor does.
So while one executor can act alone, they can only act with the consent of the others.
If the tasks are divided amongst the co executors or administrators, it is best to record the agreement of who does what in a written document, and for all to sign it.
Some actions require the signature of all the co executors or administrators (such as the sale of real property such as a family home). While one person can deal with the estate agent or conveyancing solicitor on a day to day basis, the others will need to be informed of progress and asked to sign each legal document when required.
For that reason, if one of the nominated executors is unlikely to be able to carry out their duties effectively (for example, they might live abroad and correspondence might be difficult), they might wish not to apply for a grant a probate, but rather reserve their right.
How administrators can be appointed
There is a priority order in which beneficiaries may apply to be administrators. That is:
- residuary beneficiaries
- any personal representative of a residual beneficiary (i.e. someone with a power of attorney to deal with the affairs of a residuary beneficiary)
- any other beneficiary of the will (in legal terms, a legatee)
- any personal representative of a legatee
- any creditor
If there is no will, the estate is divided according to the rules of intestacy. Administrators are appointed in the same order of priority as beneficiaries:
- the husband, wife or civil partner of the testator
- any child of the testator, or if a child has died before the testator, any of that child’s children
- the parents of the testator
- brothers and sisters of the testator, and any child of a brother or sister if the brother or sister has died before the testator
- step-brothers and step-sisters of the testator, and any child of a step-brother or step-sister if the step-brother or step-sister has died before the testator
- grandparents of the testator
- uncles and aunts by relation (not marriage) of the testator, and any child of an uncle or aunt if the uncle or aunt has died before the testator
- step-uncles and Step-aunts by relation (not marriage) of the testator, and any child of an step-uncle or step-aunt if the step-uncle or step-aunt has died before the testator
Seeking help from professional estate administrators
Executors can seek help in the administration of the estate from anyone else. That includes help from professional advisors such as solicitors, accountants or probate specialists. The nature and extent of the work a third party does is completely at the discretion of the executors.
Executors can appoint a third party to carry out the administration of the estate entirely. Since the process of probate and estate administration is a regulated activity, if a third party charges for probate work, they must be authorised to do so by law. Solicitors have commonly been authorised to do so (supervised by the Solicitors Regulation Authority), but accountants and other professionals may be able to do so as well.
Professional advice is usually sought when the administration is complex, or when problems occur. Those situations might include where:
- the estate is insolvent (debts are greater than the value of assets)
- the will cannot be found, or the validity of it might be challenged
- a beneficiary cannot be contacted
- the will creates a life interest in the estate
- the will creates a trust (for example, beneficiaries include children under 18 years of age)
- a property (such as a house or land) has an unregistered title
- the testator was a shareholder or partner in a business
- a beneficiary wants to vary his or her entitlement
Payment and fees
If a third party is appointed, the work to be carried out and the fees to be charged should be carefully agreed in advance in a written contract. Fees have a habit of creeping upwards when the ‘client’ is not alive.
Third parties who provide services to executors relating to the administration of the estate can be paid from the cash or other assets in the estate. Administration expenses are given highest priority when paying debts of the estate.
Executors themselves are only paid beyond the recovery of expenses if the will specifies. For most people, being an executor or an administrator is an unpaid job.
If you do want to leave your executors a gift to thank them for doing the work, you should make sure that the gift is given 'absolutely' and 'provided they obtain probate as an executor of this my Will.'
Duties of the executor
Executors must be able to account for every penny of the estate. They have a fiduciary duty to the creditors and beneficiaries of the estate.
An executor's duties include recording every financial transaction relating to the estate during the administration. The executors are required to draw up accounts (a list of all assets, debts and expenses) to show beneficiaries how the estate was valued at the time of death, and how expenses have reduced that value.
The money and assets belong to the estate and not the executors, and must be kept separate from the money and possessions of the executors. Expenses paid for by the executors or other parties should be recorded very carefully.
After the executors have identified the scope of the estate, duties include closing bank accounts, transferring property, paying inheritance tax and distributing the remaining assets in the deceased's estate according to the final wishes.
We have an article explaining the role and responsibilities of executors.
More information
We provide more information about wills in our series of articles about making a will. A great deal of that information explains how a will is structured, and should be useful reading to an executor or administrator.
If you haven’t made a will yourself, we encourage you to do so. To help, we provide some of our more straightforward wills (likely to be suitable for most people) absolutely free with no catches or conditions. There is no need to visit a solicitor, or buy inflexible paper forms that may be difficult to customise. Just visit our library and choose the most suitable last will and testament template.
If you need any help, just contact us.