End of life planning is something that we all have to do. As an individual, a will is arguably one of the most important documents we have to create, so it's worth taking the time to get it right and understand the different elements.
It is also invaluable to consider the role of an executor in order to decide who to appoint to act in this regard, particularly as in England and Wales you can appoint up to four executors.
Should you be appointed as an executor in someone's will, it is very important to understand what is involved before taking on the role.
What is the role of an executor?
An executor is a person named in the will of someone who has died, and who is responsible for administering the deceased’s estate according to law. He or she can be a beneficiary as well as an executor of the will. An executor can be a family member of the deceased, a friend, a professional (e.g. a lawyer or accountant), the partner of a firm, a company director or a trust corporation (a company set up specifically to act as an executor or trustee).
What are the duties of an executor?
An executor administers the deceased’s estate within a reasonable timeframe and has a number of duties, which typically include:
- establishing the assets and liabilities of the deceased’s estate;
- filing the necessary inheritance tax account;
- obtaining a grant of probate (if required);
- collecting the assets of the deceased’s free estate (not including assets passing by survivorship or assets in which the deceased had a life interest);
- settling the outstanding liabilities;
- obtaining inheritance tax clearance from HMRC;
- identifying the beneficiaries;
- ascertaining the beneficiaries’ entitlement;
- distributing the estate in accordance with the will (or the intestacy rules if a partial intestacy occurs).
It is important to remember that an executor may be required to submit a full inventory of the estate to the court, along with an account of the administration. Good record keeping is essential!
Failure to carry out any duties can leave an executor personally liable to the beneficiaries or creditors of the deceased’s estate, unless the court is satisfied that the executor acted honestly, reasonably and ought fairly to be excused.
What powers does an executor have?
Executors have a number of statutory powers which they may exercise during the estate administration process, provided the will does not amend or exclude these powers, which include the ability to:
- raise money by mortgage or charge;
- enter into a binding contract;
- appropriate any part of the estate to satisfy any whole or part of a beneficiary’s interest or share, provided no specific beneficiary is prejudiced and subject to certain rules;
- appoint trustees of the property of a minor beneficiary;
- postpone distribution to the end of the executor’s year (one year from death);
- apply the income for the maintenance, education or benefit of a minor who has an immediate right to income, or to accumulate the income if not paid;
- advance to a beneficiary the capital he or she is entitled to (whether vested or contingent).
Should an executor exercise any of the powers detailed below they must also use “such care and skill as is reasonable in the circumstances”, unless the will modifies or excludes this duty of care or any of the following powers:
- investing the assets of the estate as if they were absolutely entitled subject to the standard investment criteria;
- acquiring freehold or leasehold land in the UK as an investment, for the occupation of a beneficiary or for any other reason;
- delegating certain specific powers to an agent (although they should keep the same under review and retain adequate powers to intervene if required);
- compounding liabilities and entering into any necessary agreements;
- insuring the property of the estate as if they were the beneficial owner.
It is strongly recommended that executors take appropriate legal advice before exercising powers given by will or statute.
Should you act as an executor?
Acting as an executor is an onerous task which should not be taken lightly. Should an executor be unwilling to act in the administration of an estate, it is possible to renounce their executorship but this must be done before they are deemed to have intermeddled in the estate. An executor who is contemplating renouncing should seek legal advice as early as possible. It is also worth noting that an executor must be appointed in the will in order to have the option of acting.