What is an Executor?
An Executor is someone you appoint in your Will to carry out the terms of your Will.
Sometimes you will hear the term ‘personal representative’ – this includes Executors and Administrators (who are the people appointed to administer someone’s estate who did not leave a Will).
Your Executor, or Executors (it is usually sensible to appoint more than one person), will have the legal authority to act on your behalf, once you die, to finalise your affairs and to ensure that your estate is distributed in accordance with your Will or the law.
Who can be an Executor?
Under your Will, you can appoint almost anyone as an Executor as long as they are:
over 18 years of age; and
of sufficient mental capacity.
If you appoint your spouse or civil partner to be an Executor, and your marriage or civil partnership subsequently comes to an end (by divorce, annulment, dissolution or by being deemed void), the appointment is automatically revoked. If you die without appointing someone in place of your former spouse or civil partner, and they were your sole Executor, the court will appoint a family member or some other suitable person to administer your estate. To avoid this happening, and to ensure that the person you have chosen is responsible for dealing with your estate when you die, you should amend your choice of Executors if your marriage or civil partnership ends.
In addition, none of your Executors should be bankrupt. However, this will not act as an automatic bar to their taking on the role of Executor.
What do Executors do?
The Executors have two main sets of responsibilities:
ensuring that your estate is dealt with according to the law; and
carrying out your wishes as you have set them out in your Will.
One of the first things that the Executors have to do is to value your estate, by assessing your assets and liabilities. This is so that they can determine whether any inheritance tax is payable, because in most cases the inheritance tax must be paid before a grant of probate can be obtained. It is probate that gives them the permission to distribute your estate.
In practice, a person’s Executors often also perform the function of notifying the death to any public bodies that may have been making payments to the deceased person, though it is quite common now for the Registrar’s office to provide for this when the death is registered.
When it comes to dealing with your property, the Executors’ duties cover:
collecting together all of your assets
making an inheritance tax return and paying any inheritance tax due.
Executors should open a new bank account just for the purpose of managing the estate. Most banks are used to dealing with Executor accounts, which remain open until the whole estate is dealt with.
The Executors must also apply for a Grant of Probate where that is appropriate and needed. Only when that is done can they go on to distribute your estate as instructed by the Will. Before any gifts are paid out, they must:
ensure that all your debts are paid and other liabilities are met; and
ensure that outstanding funeral expenses are paid out of the estate.
The should also ensure that this detail and information is reflected in what is known in an Estate Account which we have covered further in a separate article. They will then distribute the estate. That means, for specific gifts of assets or possessions, transferring the asset or possessions to the beneficiaries. For the residuary estate, it depends on what your Will says. If your Will creates a trust of the residuary estate, then it means transferring it to the trustees. If your Will does not create a trust, it means transferring it straight to the beneficiaries.
Your Will creates a trust of the residuary estate, so that after the specific gifts are made, everything is passed to the Trustees.
More often than not, the Executors and the Trustees are the same people but their role changes from Executor to Trustee. In that case there may be no need for a separate stage to transfer the property to the Trustees.
Until the estate is distributed, the Executors should make sure that any ongoing bills are paid, and that the property and assets are maintained.
The role of an Executor comes to an end once the assets of your estate have been distributed (either outright to beneficiaries or to the Trustees).
So the Executors have a duty to you, to your heirs, and to the law.
If you don’t have a Will, then someone still has to be responsible for dealing with your affairs after your death. Such a person is usually referred to simply as an “administrator”.
It is possible to have only one Executor but in nearly all cases you will need to have at least two Trustees. So if you are considering creating a Will trust in your Will, you should think about appointing at least two Executors so that they can then be the Trustees of the Will trust.
In theory you can have as many Executors as you like, but only four can apply for probate.
Who will be the Executors and Trustees of your Will?
Your Executors will have the legal authority to act on your behalf, once you die, to finalise your affairs and to ensure that your estate is distributed in accordance with your Will.
You can choose anyone who is over 18 and of sufficient mental capacity. It is wise to have more than one Executor so they can share the duties, and so there is another Executor if one is unable to carry out the tasks or if one dies before you. And remember that, while it is common to have a close family member, they will also have their bereavement to deal with at the same time.
Family members as Executors
Think about asking your spouse or partner, other friends and family or maybe a law firm (although they will charge your estate for their services).
You may also name relatives as your Executors, such as your child (if they are over 18), adult grandchild, niece, nephew etc. Before choosing which family member to appoint, you should discuss with them whether they would be comfortable with taking on the role and the responsibilities it brings with it. Such discussion will help to avoid future complications. It is also important to bear in mind that completing probate (something your Executors will be expected to participate in) can be very time-consuming, and to factor this in when making your choice.
If you've appointed Guardians for your children under 18, consider choosing someone other than the Guardians as your Executors. This is because the Executors usually become the Trustees of your children’s property. The Trustees will make financial provision for the children so that the Guardians can fulfil their duties, and then the property can be transferred to the children when they reach the age to inherit.
Appointing a professional Executor/ Trustee
You can choose to appoint one of our selected law firms as an Executor if you would like to. There is no fee for choosing them but fees will be charged as and when it comes to administering the estate; your beneficiaries can always ask a professional Executor to step down and law firms will usually do so.
Typically where you appoint a professional Executor/ Trustee there will be additional information in their own information/ guidance which may be along the lines of:-
"Where we are instructed in a particularly complex estate, in addition to the time charge set out....we may also charge a value element calculated as x% of the value of the deceased's real property and y% of the value of the remainder of the estate plus VAT (currently at 20%). The Law Society's guidelines allow us to charge this"
Where you appoint a Solicitor for instance in your Will as your Executor it is for them to exercise their professional judgment about whether to apply a value element when charging for the administration of an estate. As detailed in
The Law Society's Guide to Non-Contentious Costs (2012); and set out in
Jemma Trust v Liptrott&Ors (2003) EWCACiv 1476.
The role of an Executor comes to an end once the assets of your estate have been distributed (either outright to beneficiaries or to the Trustees if there are any ongoing Will trusts). This interview provides for the same people to be both your Executors and your Trustees.
If you only select individuals as Executors, you will also be asked if you wish to appoint a substitute Executor. We recommend that you do so. If you chose to appoint a law firm as one of the Executors, you don't need a substitute and you won't be asked about this.
Liability for mistakes
Your Executors will, ultimately, be liable for any mistakes made in the administration of your estate. They may also be held personally and financially liable for any loss occurring as a result of a breach of their duty. You should therefore consider carefully who you would like to act as the Executors of your Will, and consult with them before appointing them.
The role of an Executor can be quite onerous, and even if the estate is straightforward it is a serious responsibility. It is a good idea to make sure they understand what is expected of them and what the duties of an Executor are. It is also considered best practice to appoint at least two Executors on your death to enable them to either act together in the administration of your Estate, alternatively, they can then decide which one of them will take on the formal appointment.
Some people instead consider perhaps appointing one person, for example a spouse/ adult child with a substitute but then should that person not be able to act, not wish to, be mentally incapable of acting at the time or where they have died before you/ at the same time, a further formal application then needs to be made to enable your substitute Executor to act, evidence of death/ incapacity provided, the co-operation of the first and only one appointed; which can all result in delay in the probate process and further costs to the estate.
Therefore, one Executor with a substitute is not recommended.
What is the maximum number of Executors I can appoint?
Though you may appoint as many Executors as you like, no more than four may take out the Grant of Probate. Appointing a large number of Executors may also complicate the administration of your estate.
Most people will normally choose two Executors in their Will. Naming only one Executor may be appropriate if you are choosing a professional Executor, such as a law firm however, as detailed above is not recommended in other circumstances.
Further if the provisions of your Will are such that there is likely to be an ongoing trust when you die, you should consider appointing at least two Trustees. This may be the case if your children are under 18, or if you have made provision for some other sort of trust in your Will. The role of Executor and Trustee is entirely separate and we have covered this in further guidance. The two roles can be covered by the same people but it is important to understand the distinction between the two.
Executors and Administrators
If you do not name any Executors in your Will, or if those you name as Executors do not wish to take on the role, die before you and are not mentally capable of acting, then one or more of the beneficiaries of your Will may be able to apply to administer your estate on their own behalf. However, this is a more complicated procedure and you need specialist legal advice in ensuring any such application is done correctly and by the appropriate person/ people entitled. In this instance, they will be applying as an Administrator as opposed to an Executor.
Executors and Trustees
Executors usually do become the Trustees of any trusts created by your Will. If you have children who are under 18 or have not reached the age you specify for them to inherit, then any property you leave them will be held in trust for them until they reach that age. If they are under 18, and you have appointed Guardians, then it is a good idea to choose different people as your Trustees.
A substitute Executor is one who will take the place of a named Executor if they are unwilling or unable to act. Though you are under no obligation to do so, you should consider appointing one or more substitute Executors under your Will. This will allow you to retain greater control over who will administer your estate once you die. A substitute Executor may, for example, be another named individual or may be a professional Executor such as a law firm and where you do appoint a substitute you should also consider whether they will act only if both the first named have died/ are unable to act or if one of them cannot for some reason. This will then be drafted accordingly in your Will.
Using professionals as Executors
Being an Executor brings with it a variety of duties and responsibilities. Depending on the nature of your estate, such as its size and complexity, the individuals you choose to name as your Executors might find the role to be onerous and, at times, complicated. This may be exacerbated if they have other significant demands on their time and are also trying to come to terms with the recent loss of a loved one.
To avoid these problems, you may like to consider appointing professionals to administer your estate on their behalf, such as a firm of solicitors or other probate professionals. They could either act on their own or in conjunction with named family members and/or friends.
If you do decide to name a professional as an Executor, you should take care when choosing exactly who you would like to take on the position. Careful consideration can result in a professional Executor who:
has the relevant expertise;
is diligent in their duties; and
will act alongside, and be considerate of, any other individuals you may have also named as your Executors.
Of course, professionals make a charge for their work, whether it is a bill for their time when the administration has been completed, or a percentage of the total value of the estate. Depending on the size and complexity of your estate, the final fee will vary. It is important to make sure you understand fully how the professional you are considering appointing will charge before you commit yourself.
Professional Executors are also likely to be able to administer the estate quickly and deal with any complicated legal, tax or property issues. This may be particularly relevant if your estate is complex.
Sometimes, firms providing professional Executor services do so through a trust corporation. This is a separate entity from the firm itself, but it makes no difference to the service provided. The reason for doing so is to provide continuity, so that they are not reliant on named partners to act as Executors, for example after they have left the firm. The individuals responsible for carrying out the duties of the corporation would usually be whoever are the senior members of the firm at the time.