Duties and Responsibilities of an Executor
It has been said that being asked to be appointed as an executor in someone’s Will is an honour, but when the time comes to act in that role it could become a horror!
This is because being an executor has a significant responsibility, but it is not uncommon to feel uncertain or even reluctant about taking on the role. Many people are unsure whether they must accept the appointment, or if they have the option to decline. Understanding the rights and obligations as a named executor is crucial before making any decisions.
This article explains what could be involved in the role should you chose to accept it, and whether you can decline to act, and what is involved in stepping aside. The following guidance will help clarify options and the practical steps that may need to be taken.
What is an Executor and how do you become one?
An executor is a person appointed by a Will to administer the estate of the deceased person. Their responsibilities include ensuring that the deceased's wishes are carried out, managing the estate's assets, paying any debts and taxes, and distributing the remaining assets to the beneficiaries.
An individual becomes an executor by being named in the deceased's Will, or if there is no Will or if the named executor is unable or unwilling to serve, then the court may appoint an administrator to perform similar duties.
What does an Executor do?
In simple terms an executor will need to:
Identify and value the deceased’s assets, debts and liabilities
Gain legal control over those assets
Maintain the assets safely once collected in and covert any to money as appropriate
Pay off the debts and liabilities, including any tax
Ascertain the residuary estate and properly distribute the estate
Become a trustee of the deceased’s assets as appropriate
You should also keep the beneficiaries informed, distribute the estate according to the Will, maintain accurate records, and act in good faith always.
In addition to administering the estate in accordance with those steps, an executor owes duties to act with such care and diligence as is reasonable in the circumstances.
Many ‘lay’ executors i.e. partner/family members, may not know what to do when the time comes or how to do it. In these instances, it’s important to seek professional guidance or delegate to a professional.
Can you decline to be an Executor?
Although anyone appointed should have full intentions to fulfil the role, there is no obligation to act, so you do not have to act if you do not want to.
An Executor’s duties only become active if a person does undertake that role. Therefore, any duties owed to the beneficiaries of the Will do not apply unless an executor chooses to act.
If declining the appointment, then you will need to liaise with any other named executors in the Will and explain your position. You should sign a document or deed to formally confirm this, which is known as ‘renouncing’ your position. Some executors, including solicitors and banks, have been known to refuse to renounce, or if they do then charge for doing so, either of which can cause problems and delay in administering an estate.
If you renounce your position, then any other named executors will be able to apply for a grant of representation in their own names without your involvement. An alternative is for an executor to “reserve” their powers, where they would choose not to be actively involved in the estate administration but retain responsibility.
Can an Executor be removed?
An executor can be removed, for example if they refuse to renounce or fail to perform their duties properly. This would need to be done by a court order if beneficiaries or other interested parties can prove that the executor is not acting in the best interests of the estate.
What should an Executor do if they need help?
If an executor needs help, they can seek assistance from professionals such as solicitors, or from an appropriate company like Harold Stephens. These experts can provide guidance on legal, financial, and administrative matters related to the estate.
The general rule is that an Executor is entitled to an indemnity from the estate for costs properly incurred in discharging their duties, so the estate should usually cover those costs including professional fees.
However, situations can arise where one party argues that the costs incurred by the Executor have not in fact been ‘properly incurred’ which may then become part of court disputes.
Will an Executor be able to claim court costs from the estate?
Yes potentially, but it is possible for a court to make an order requiring an executor to meet certain costs themselves, and not to recover them from the estate.
There are matters a court must consider when deciding whether costs were indeed “properly incurred” to include:
Did the executor obtained directions from the court before bringing or defending the proceedings?
Has the executor acted in the interests of the estate or for a benefit other than that of the estate, including their own?
Has the executor acted unreasonably in bringing or defending the proceedings?
Therefore, if any dispute relating to the Will or the estate is a prospect then a named executor would do well to consider this risk at the onset, before either agreeing to act, or instead delegating to a professional for it to be dealt with.
Conclusion
Executors play a vital role in ensuring that the deceased's wishes are honoured, debts and taxes are paid, and assets are distributed correctly. It is a position that requires diligence, organisation, and sometimes professional assistance to navigate complex legal and financial matters.
What Next?
If you require assistance with a loved-one’s Estate, then please contact us immediately for an initial complimentary discussion to see if we can help. Indeed, if you are in the process of planning your estate to include Wills, Lasting Power of Attorney and perhaps Inheritance Tax planning – then again, it’s best to have an early discussion as soon as you can.
Call us on 0117 3636 212 or email office@haroldstephens.co.uk