Category: Private Client
The executor’s main role is to carry out the administrative processes involved in winding up a deceased’s affairs by ingathering funds, paying off debts and making over whatever is left to the beneficiaries. The executor carries out their role for the benefit of all those with an “interest” in the estate, which could be because they have an entitlement to inherit the estate, or because the deceased owed them money.
An important benefit of making a will is the ability to appoint an Executor of your choosing who is a trusted person who will have a responsibility to wind up your affairs, gather funds, pay bills and make over bequests to family and friends in terms of your directions. Because of the importance of this role, time should be taken in making the will to be sure the person appointed is the best person to carry out those duties. The appointed Executor requires to be over the age of 16 years and someone you trust. This could be a member of your family, and the fact that they have an entitlement to inherit under the will does not bar their appointment. It is always best to speak to them first and get them to agree to act because, on death, they are not obliged to agree to act, and have the right to decline. It is also open to you to appoint a solicitor as your Executor. It is essential that someone is ultimately responsible for ensuring everything has been attended to and that your affairs are properly administered after you pass away. An executor appointed in a will is known as an “executor nominate”.
If you do not have a will, or the appointment in the will fails, an executor can be appointed by a different procedure whereby someone makes application to the court by lodging a formal Writ, and the court appointing them as “executor dative”. Whilst this can cause initial uncertainty, delay and cost at the start, both types of executor generally have the same role, responsibilities and powers to realize and distribute the estate.
If all the named executors have died — or for some reason are unable to take on the role, then the person receiving all, or part, of the estate that is left after debts, costs and legacies are paid, known as “the residue” of the estate, can step in by way of application to the court. However, appointing more than one or alternative Executors in your will can be a good way of avoiding this problem.
If there is no will, or a change of circumstances means an Executor nominate is not appointed under the will, then only those who are entitled to all or part, of the estate can seek appointment by the court as executor dative. This means a need for a close look at the family composition before proceeding to seek an appointment. If there is no immediate family, this can delay things considerably. Only once it is established who is going to take on the role, can an application to the court for an executor dative appointment be made. Unlike appointment under a will, the person the court appoints cannot subsequently resign or bring other executors in to assist them.
If, for whatever reason, the executors named in the will cannot fulfil the role ( such as in the case where they may have died, or may be incapable of carrying out the duties) then one of the beneficiaries, or the representative of a beneficiary who cannot take it on themselves, can be appointed by the court as executor dative. For example, if the eligible person due to inherit from the estate was unfit through mental incapacity, known as “ incapax”, but had themselves appointed an attorney, then that attorney could make application to the court for appointment to enable them to fulfil the role of executor dative.
To carry out the executor’s primary role involves collecting information about the estate, ingathering the assets and ultimately paying out funds. Frequently due to the complexity of handling the estate, the executor will appoint a solicitor to act although they still have the ultimate responsibility. Time has to be taken to make full and complete investigations and prepare a comprehensive and accurate inventory of the deceased’s assets and liabilities as the executors. If the estate is above the inheritance tax threshold then it is also part of the Executor’s duties to account to the HMRC. Once the Confirmation is prepared, the executor will make an application to the court for confirmation which, once granted by the court, is their authority to deal with the deceased’s assets by selling any properties or withdrawing funds from bank accounts, to pay off debts and then account to the beneficiaries.
Before the estate is finalised, the executor requires to provide a full statement of “intromissions” to the beneficiaries so they can raise any queries, and only once they are satisfied everything is in order, are the beneficiaries asked to sign a formal discharge to approve what has taken place. Often the executor can also be appointed as a Trustee in the will, and their role continues even after the estate has been wound up.
The winding up of an estate simply cannot progress without an Executor being in post. If you have suffered a bereavement of a loved one and have been appointed as executor nominate in a will, or if you wish to inquire about seeking to be appointed as executor dative by the court, or even if you just want to discuss your as a beneficiary of an estate, at Livingstone Brown our private client teams are happy to assist and guide you. The winding up of an estate can appear a daunting prospect especially if you have recently suffered a bereavement and our executry. In the case of large estates involving inheritance tax considerations, the complexity, potential pitfalls and need for professional input cannot be understated. It is very common for Executors to seek legal advice and instruct a solicitor to act for them in the winding up of estates, and our executry clients have regularly reported to us that they felt the assistance they got from having an experienced lawyer appointed at an early stage in the process was invaluable, and an enormous support. Please therefore do not hesitate to contact our experienced and approachable team of private client solicitors, here at Livingstone Brown.