Being asked to act as someone’s Executor may seem a simple request, and many people give it little thought before accepting. However, the role of Executor carries strict legal duties and can result in personal liability if the estate is not administered correctly.
Individuals rather than trust companies are often appointed as Executors in the deceased’s Will. Individuals can also be appointed to the role of Administrator in cases where no Will has been made by the deceased. It is essential that people understand the duties of being an executor before accepting the role so that they understand the potential pitfalls. The duty of an Executor/Administrator is to hold the estate of the deceased on trust for the beneficiaries. They have a responsibility to collect in the assets of the estate, pay any liabilities and then make distributions to the beneficiaries in accordance with the deceased’s Will or the Intestacy Rules.
However, all too often it is not easy to locate and value assets, particularly where the deceased ran their own business or entered into complex investments with third parties, and Wills often set up trusts which can continue for many years, resulting in a long-term role for the Executor / Trustee. Executors and Trustees must act unanimously so problems often arise if the individuals appointed cannot work together efficiently or do not trust each other. As Executors and Trustees are often beneficiaries and family members, there can be conflicts of interest between them. Disputes between step-parents and adult children who have both been appointed as Executors are common as tensions can often emerge when the deceased’s assets are divided between partners and children. Equally, many people choose to name their children as Executors and Trustees, even in cases where these children have never got on. The hope is that working together will bring them closer, which is rarely the case. Instead disagreements arise, which means solicitors and sometimes court intervention is required.
Examples of disputes in our practice include an estate which comprised valuable land from which sand was quarried. The deceased died in 1984, but the estate was only fully wound up in 2017 when the mineral rights licence came to an end. Large parts of the estate were sold off, but the land from which the mineral royalties were derived was retained by the Executors for many years. During that time the professional Executor retired from practice, but an Executor cannot “retire” from an estate and so had to remain personally involved and deal with numerous disputes between family members and ultimately prospective purchasers of the land. There are also numerous examples of where Executors/Administrators act in a way that causes loss to the estate or where estate monies are misused, either intentionally or negligently. In such cases the Executors/Administrators can be held personally liable.
Equally, Executors/Administrators have no control over the behaviour of beneficiaries and so can often find themselves as parties to a claim under the Inheritance (Provision for Family and Dependants) Act 1975 where disputes between family members arise.
Individuals are not required to take up the role of Executors/Administrators and can refuse to act at the outset. However, once they have started to deal with the deceased’s assets, they are obliged to finish the administration of the estate and cannot retire. Therefore, careful thought should be given whether or not to accept the role at a very early stage.
Probate can be a confusing area of law, and it can be difficult for a lay executor to take on the responsibility of administering an estate on their own without any legal support. As there are many potential pitfalls of accepting the role of an executor, seeking professional guidance is strongly recommended, particularly in cases that require complex tax calculations or where there is a possibility that a dispute may arise.
Oratto can help you find an experienced probate solicitor who is best suited to your circumstances.
Contact Oratto on 0845 3883765 to speak with an adviser or use our contact form to arrange a call-back.