An executor is a person with the legal authority to manage the deceased’s assets and undertake the administration of the estate upon their death. An executor can be a family member, friend or legal professional and is chosen by the testator when writing their Will. The person chosen by the testator is tasked with the responsibilities of an Executor.
Administrator is the term used, in replacement of executor of a Will, when there is no Will and therefore no executor has been named. If no Executor has been named the rules of intestacy will decide who has the right to administer the estate.
The duties and responsibilities of an Executor of a Will and an Administrator are largely the same and they share the same authority, responsibility and liability, the difference being the presence of a Will. It is an extremely important role as whoever is chosen is responsible for dealing with everything the deceased owned. This includes property, cash, financial investments as well as personal effects and pets.
What are the duties of an Executor?
- Identifying and contacting all the relevant institutions involved and gathering information about the estate’s assets and their value.
- Identifying and settling any debts or liabilities against the estate.
- Collecting all of the deceased’s assets and ensuring that they are protected until they can be distributed to the beneficiaries.
- Identify and locate all of the estate’s beneficiaries.
- Calculating the estate’s value and any tax owed to HMRC.
- Applying to the probate registry and HMRC for a grant of probate or letters of administration.
- Selling or transferring any property in the estate.
- Distributing the estate according to the wishes in the Will or through the laws of intestacy. This will include paying the legacies, transferring particular items of property to the beneficiaries, paying out the residue of the estate to one or more specified beneficiaries or holding the property in Trust on the terms specified in the Testators will.
What is an executor responsible for?
It is the responsibility of the executor to ensure that the estate has been administered and distributed according to the wishes in the Will and according to the law. This means the executor must take the necessary actions to protect the estate, its beneficiaries and themselves.
Some of the main duties and responsibilities of an Executor of a Will include:
- Ensuring the safety of the estate’s assets and the correct insurance is in place.
- Correctly identifying the assets and liabilities of the estate and ensuring they have been handled correctly.
- Correctly identifying the deceased’s beneficiaries and their entitlement under the will or laws of intestacy and distributing their inheritance according.
- Providing the correct tax calculations to HMRC and insuring any outstanding amounts are settled.
- Completing the administration of the estate in a timely manner.
Ensuring that all the correct legal procedures have been taken and actioned correctly can be time-consuming and sometimes complicated by legal jargon, however, ensuring all of the possible precautions have been taken will reduce the risk to the executor if something were to go wrong.
To find out more about an executors liability when administering an estate read our post “What can an executor of an estate be held liable for?”.
Taking care of the estate’s assets
When you take on your role as executor you are responsible for making sure the estates assets are kept in good order and ensure they are not put at risk. This could include securing and insuring an empty property, making sure any financial investments the estate has are monitored and continue to deliver the returns they did when the testator was alive. This may include share portfolios and other invested funds.
As an executor of a will, you will be responsible for paying any outstanding taxes owed by the estate. Failure to follow the rules around taxation could lead to fines being levied by the HMRC. You cannot always claim fines back from the estate and if imposed, for example for late payment, they will become your personal responsibility.
As well as distributing assets in accordance with the will, you will also need to distribute assets in accordance with the law. If one of the beneficiaries has been declared bankrupt, you will need to be aware of the bankruptcy order and pay the creditors prior to distributing any assets to the beneficiaries. You should always conduct bankruptcy searches prior to distribution and there are many on-line agencies that can supply them. If there is no Will you have to be sure that the family tree you have put together is accurate, as the appearance of an unknown beneficiary will cause problems later on. We would recommend that you take out executor liability insurance to help guard against the financial loss this could cause.
If I am named as an executor in a Will do I have to act?
The duties and responsibilities of an executor can be time-consuming and stressful, and you are not legally obliged to take on the responsibility if you do not want to. If you do not wish to act or to take on the responsibility you have a couple of options:
You do not wish to act or to take on the responsibility you have a couple of options:
If you wish to have no involvement in the estate administration whatsoever you can choose to renounce your position as executor. This means you will no longer be responsible for carrying out executor’s duties. In order to step down as executor you must not have intermeddled in the estate, this means you must not have handled the deceased’s assets or taken any administrative action. If you wish to renounce you will need to sign a document confirming your renunciation, after which you will no longer have any authority or involvement in the estate administration.
If more than one executor has been named in the will you may wish to reserve your power in favour of the other executor/s. Power reserved means that you do not take an active role in the administration or executor’s duties. This allows the other executors to take the required actions without having to have everything co-signed by the executor with power reserved. However, the executor with power reserved can choose to participate at any time if necessary.
Engaging a professional to act on your behalf
Instructing a solicitor does not mean that your executorship is transferred to them, this means you are still the executor and will be responsible for making decisions for the estate. However, the solicitor will act on your behalf and be responsible for the practical aspects of the estate administration. This can include the executor’s duties that are listed above. A solicitor must also act according to a set of professional standards. This means that they will ensure that the necessary legal precautions have been taken and limit the liability to the executor. A solicitor’s knowledge and practical experience can also ensure an efficient and timely administration of the estate that follows the wishes in the will and is in accordance with the law.