duties of executors
On the Will writing page we discussed choosing Executors but we didn’t take a close look at what they do or how difficult it might be. The complexity of the estate is likely to have a greater impact on that than the contents of the Will. The Will simply says who gets everything; it doesn’t define what “everything” is and nobody gets anything until the Executors have wound the estate up and obtained a Grant of Probate. So what “everything” turns out to be – the nature of the assets, where and how they are owned – is more likely to affect how involved the Executors job will be. For that reason we can only talk in fairly general terms.
Please not that this is simply a summary of the main duties undertaken by an Executor of a Will. It is given only as general guidance and is not intended to be a step-by-step, all-inclusive guide. Whole books have been written on this subject so these brief details will fall short of the information that may be required by some Executors. On the other hand your estate may be perfectly straightforward. Nevertheless, we hope that this information might prove helpful to those who are not clear about what an Executor actually does.
what to do first
Executors (who may well be members of the family and very often beneficiaries), have particular duties and responsibilities towards the estate. Following a person’s death, certain matters will require the immediate attention of the Executors:
1. The original of the Will should be obtained. Usually the provisions are non-contentious and the administration proceeds smoothly.
2. The Will should be consulted for directions in regard to the funeral. If requested, assist the family with arrangements for the funeral.
3. Ensure that appropriate steps are taken to secure the deceased’s property. It may, for example, be appropriate to remove important and valuable assets and documents to a place of safe-keeping if they would otherwise remain in an empty house.
4. Open an Executor’s Account at a bank.
5. Obtain copies of the deceased’s death certificate. Several of the organisations with whom the Executors will probably be dealing will ask for a copy of the death certificate (some may want originals – it is possible to obtain more than one original).
preparing to obtain the grant of probate
The Executors should obtain details of the deceased’s property and of any debts outstanding at the date of death (this will include mundane things such as gas, electricity and council tax still payable as well as any outstanding mortgage on the property etc). They will need any building society passbooks, share certificates and details of bank accounts, insurance policies etc. The assets will need to be listed and valuations will need to be obtained by writing to the various institutions holding the deceased’s assets, producing the death certificate, usually an ‘original’ is required. When the death is registered an adequate number of ‘original’ death certificates should be obtained as the institutions requesting them will not normally return them.
There may be monies owed to the deceased which the Executors will need to call in. A schedule of all assets and debts will need to be prepared.
The testator’s bank may hold share certificates or other documents or property of the deceased. One should always ask them to check. Also, remember to ask for withdrawal and transfer forms when dealing with any institution holding any assets. These can be signed immediately so they are ready for use once the Grant is obtained. It will help prevent unnecessary delays later.
Executors may use the services of a solicitor to assist them if they wish. The solicitor’s charges are taken from the estate. However, the authority to act rests with the Executors and they may choose to deal with everything themselves if they are confident to do so.
missing and/or unknown creditors and beneficiaries
Failure to pay an unknown creditor or untraceable beneficiary is a breach of duty and Executors should therefore protect themselves against personal liability by complying with the statutory advertisement provisions. Notice of the death should be placed in the local papers and the London Gazette. While this is not a legal obligation it is very good practice and will protect Executors against a problem of this type arising.
the inland revenue account
All assets must be valued in accordance with the inheritance valuation principles. Executors may need to instruct other professionals to prepare these valuations. These values and the amount of any debts and liabilities at death will be used to prepare the Inland Revenue account. Any Inheritance Tax due will then be calculated. Payment of the tax is normally requited before the Grant of Probate is issued and any assets of the estate are sold or distributed although it may be possible for beneficiaries to make an arrangement for later payment with the Inland Revenue, perhaps over a period of time. This depends on the circumstances and the perceived need to do so. The Revenue are not obliged to enter into any such agreement and, one way or another, they are going to want the money.
presenting the papers to the probate office
Every application for a Grant of Probate must be supported by the appropriate oath. Swearing the oath must be done in front of a Commissioner of Oaths or independent solicitor before the Grant of Probate will be issued. The Grant enables the Executors to prove their authority and to deal with the deceased’s property under the terms of the Will.
All relevant papers are then presented to the Probate Office who issue the Grant to one or more of the Executors willing and able to act. There may be two or three Executors sharing the work that leads to the issue of a Grant of Probate but it might be that the Grant is issued to just one of them if that is what they agree between them. The person(s) to whom the Grant is issued will be the one(s) to preside over the actual distribution of the estate. Assuming there are no complications an appointment to “swear the papers” will normally be made with the Probate Office within a few weeks. Please not that executors are not obliged to use the nearest Probate Office. It may be advisable to enquire as to the likely delay as interest may be mounting on the Executor’s account, particularly if tax is payable prior to the Grant being issued, and no assets, including property, can be sold without the Grant.
administration and distribution of the estate
Having obtained the Grant of Probate, the Executors may complete the administration of the estate and arrange its distribution. This can be divided into various stages as described below:
- Consideration of the powers and responsibilities of the Executors in regard to the estate;
- Collecting the deceased’s assets, calling in monies owed;
- Paying the deceased’s funeral and testamentary expenses and debts including any loans and applicable interest;
- Distributing the remainder of the estate in accordance with the terms of the Will unless legal force majeur – such as a successful claim against the estate – dictates otherwise).
- If it is necessary to sell assets of the estate to raise money for the payment of any liabilities the decision in regard to which assets to sell should be taken in consultation with the beneficiaries.
Accounts showing the real and personal estate of the deceased, its administration and distribution to the beneficiaries must be produced by the Executors. It is therefore essential that adequate records be maintained from the start. The accounts should be kept for a period of twelve years.
If any trusts arise from the administration of the estate (for example if a beneficiary has not attained the age at which the Will stipulates they may take their inheritance) then the Executors must pay the inheritance of that person or persons to the appointed Trustees whose receipt will discharge the Executors from further responsibility. However, if no Trustees are specifically appointed in the Will then the Executors are deemed to be appointed by default.
I hope these notes are helpful but please remember that they are not exhaustive. They should not be treated as a stand-alone guide to being an Executor. They were never intended to be. As mentioned towards the beginning, whole books have been written on this subject and some are often available in public libraries. If further information is required that would be a good place to start. And don’t worry too much about how your Executors will cope; it is important to have people you know and trust as your Executors. If they need legal assistance, and they might do, they can always engage a solicitor who has done it many, many times before to help and guide them.