When a person dies, the legal responsibility for the distribution of the deceased’s estate passes onto anyone named in the will as an executor. It is their responsibility to carry out the instructions detailed in the will. If there is no will or those named are not able to act as executors, a court may appoint an administrator to fulfil the role.
What does an executor do?
An executor of an estate (also known as a ‘personal representative’) is the person who is legally responsible for all aspects of the estate of a person who has died, from the moment of death until the estate has been distributed to the people (the beneficiaries) nominated by the deceased.
Who can be an executor?
Anyone over the age of 18 can be an executor. Sometimes there is one executor. Sometimes there are two or three or more. Sometimes the executors are professional people such as accountants or other business advisers of the deceased person. Sometimes they are firms of solicitors who have helped with the drafting of the Will. These people are entitled to charge for the services they undertake in administering the estate to a conclusion.
However, more often than not, the executors are members of the deceased person’s close family. Executors who are not professional executors cannot charge for their time but can seek reimbursement of reasonable expenses they incur.
Can one executor act without the other?
Generally, the executors will need to act ‘as one’ (i.e. jointly) especially when selling land belonging to the estate. They will need to agree about anything they propose to do.
However, when dealing with cash and personal items, the executors can act individually as well as together (acting ‘jointly and severally’) although any other executor should be informed about what is going on.
Can an executor be a beneficiary of a will?
Yes, executors can (and often are) beneficiaries of an estate as well as being in control of it. However, an executor cannot be somebody who is also one of the official witnesses of the will.
What are the duties and powers of an executor?
Executors have both duties (things they have to do) and powers (things they can do lawfully if they want to).
One of an executor’s primary duties is to safeguard the estate from any loss or theft, to keep it safe for the benefit of the beneficiaries who are due to inherit it.
One of an executor’s first tasks may be to arrange the funeral of the deceased, although, as you can imagine, such a personal event is normally delegated to the close family members, acting together.
Other executors’ duties include:
- To be prepared to provide an account to beneficiaries and to the Court listing the assets and liabilities of the estate;
- To act diligently and with reasonable speed in the administration of the estate (that is, gathering in the assets, turning them into money where required and distributing them according to the terms of any will). An executor has a year from the Grant of Probate to complete these tasks, otherwise, interest may be payable to those waiting to receive their inheritance money;
- To exercise “reasonable skill and care in all they do and in whatever decisions they take.
What powers does an executor have?
An executor’s powers are generally specified in the will itself – either very specifically (such as the power to run the deceased’s business after their death) or by reference to standard lists of powers that are incorporated in many wills.
An executor’s primary purpose is to act ‘in the best interests of the estate’ generally – i.e. in the interests of all the beneficiaries, without favouring one over another.
What happens if an executor does not follow the will?
If the beneficiaries of an estate (or one of them) feel that an executor is failing to fulfil one of their duties, legal steps can be taken to compel an executor to do so or be removed from their role.
If the beneficiaries of an estate (or any one of them) believe that an executor is exercising an executor’s power in an irrational or biased way, steps can be taken to challenge this and/or remove the offending executor from having any further role in administering the estate.
An executor’s duties will generally come to an end when the deceased’s estate has been fully distributed to the beneficiaries. However, if the deceased has set up a trust of their money, an executor’s role will normally become the role of a trustee of the Will trust. The trustees may continue to administer money in a trust for the benefit of the trust’s beneficiaries for many years after the deceased has died.
Examples of situations when you may consider claims against an executor
A beneficiary may wish to consider a claim against an executor in many situations, but common scenarios include:
- A delay in the administration of the estate or the distribution of money to beneficiaries;
- Disagreement about the sale of a house belonging to the estate. The house may be being sold too slowly or at the wrong price, or perhaps at a price which is too low, to someone closely associated with the executor;
- If an executor is rejecting or failing to seek sensible financial advice on financial issues, such as the sale of valuable items or shares at the right price;
- Failing to act quickly in respect of ‘volatile’ assets such as shareholdings. The value of shares might dramatically decrease, diminishing the value of a legacy of shares to beneficiaries;
- There may be disagreements between family members about where the deceased should be buried or about their headstone;
- There may be accusations that an executor is acting in an obvious ‘conflict of interest’ if they are also a beneficiary as well.
- It may be alleged, for example, that they are using the estate’s money to improve or repair a house that only one executor/beneficiary is due to receive under the will;
- There may be a refusal on the part of an executor to investigate financial losses or allegations arising before the deceased died, perhaps during a period of time when the deceased was mentally incapable or vulnerable. The value of an estate when someone dies may be considerably lower than the beneficiaries of the estate expected, due to some of the deceased’s funds being spent or diminished during their lifetime. This may occur where an executor has also been an attorney for the deceased person during the last phase of their life. Perhaps money has been gifted or misused by the attorney during this period;
- The executors may refuse to provide adequate information to beneficiaries about the estate (although there are limits in what a beneficiary can reasonably ask for information about);
- There may be an alleged failure to communicate with beneficiaries about what is happening or the administration of the estate may have halted due to an inability between executors to agree on what should be done;
- The executors may have to deal with claims against the estate from other people, for example under the Inheritance (Provision for Family & Dependents) Act 1975 or a challenge to the validity of a will itself.
These are just a few examples of the problems which can arise which may result in claims against an executor.
Funding claims against executors
If you are an executor, you cannot be expected to deal with complex legal disputes, without seeking expert legal help. As long as it is reasonable to seek legal advice to help resolve complex situations, an executor can expect to receive an indemnity (i.e. full reimbursement) of their reasonable legal costs from the estate, before the estate’s money is distributed to beneficiaries.
The costs of legal advice to help in administering the estate (gathering in the estate’s assets, paying its liabilities and then distributing the estate’s money to the right people) are also recoverable from the estate, prior to any distribution to beneficiaries.
This provision of costs means that, if there are complex disputes or claims against or involving an executor, these can end up diminishing the amount of money a residuary beneficiary of an estate can expect to receive. These costs pressures can be used to help the early resolution of difficult disputes.
If you are a beneficiary and wish to obtain advice about making a claim against an executor, then please contact us to discuss what funding options may be applicable.
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Who Can Help You?
Our specialist solicitors regularly advise executors, beneficiaries and personal representatives and trustees about the exercise of an executor’s powers and duties, rights and responsibilities and how to resolve disputes swiftly and cost effectively.
The interrelationship of powers, duties, responsibilities and relationships (often dysfunctional or strained relationships) can create complex situations particularly within families which do not function very well or where mutual suspicion prevails.
Contact us without delay for expert advice from our experienced team of solicitors regarding any potential claim against an executor.