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.
Family members as Executors
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.