The role and responsibilities of the executors of a will
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 responsible for the administration of the estate of someone who has died. Estate is simply a word that means the assets and debts of the deceased. Very generally, administering the estate is the process of identifying the contents of the 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 (in legal terms, the testator) 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. 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 acting executor cannot complete the administration of the estate.
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.
How work is divided between executors or administrators
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, the responsibilities of all the executors remain the same, regardless of the work they do. So, however the tasks are divided amongst the 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 documents require the signature of all the executors or administrators. For that reason, if one of the nominated executors is unlikely to be able to carry out his duties effectively (for example, he might live abroad and correspondence might be difficult), he might wish not to apply for a grant a probate, but rather reserve his 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 or accountants. The nature and extent of the work a third party does is completely at the discretion of the executors.
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.
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, he must be authorised to do so by law. Solicitors have commonly been authorised to do so, but accountants and other professionals may be able to do so as well.
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.
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
Executors 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.
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.
The executors must record 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.
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 forms from the corner shop 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 choosing, just contact us.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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