Should I Become Executor of a Will?

Have you been asked to be the executor of the Will of a loved one or friend? In this article, our probate solicitors explain what an executor is and answer your questions on the role of an executor.

For expert probate advice call our team of specialist probate lawyers or complete our online enquiry form.

The appointment of an executor in a Will

An executor is named in a Will as the person responsible for managing the deceased’s estate. The responsibilities of an executor involve:

1. Working out what assets the deceased had.
2. Gathering the assets in so that they can be distributed.
3. Paying any outstanding debts.
4. Paying any inheritance tax, capital gains tax or other tax liability.
5. Applying for probate and obtaining the grant of probate.
6. Sorting out any challenges to the validity of the Will or claims made alleging that the Will did not make reasonable financial provision for them.
7. Finding any beneficiaries if they have moved address.
8. Distributing the estate to the beneficiaries in accordance with the Will.

Appointment as an executor

People often appoint a friend or family member as an executor in their Will. It may feel like an honour to be asked to fulfil the role of executor (assuming you are asked, as it is not that uncommon for people to only find out that they are one of the executors of a friend’s or loved one’s estate after the deceased has passed away!). Unfortunately, executors can quickly realise how onerous the honour is.

Sometimes, because executors have been personally appointed by the deceased to act as the executor, they feel that they must ‘’go it alone’’ not realising just how time-consuming a task acting as an executor can be or how difficult it is to resist pressure from friends and family to sort out the estate quickly.

For executors who feel under pressure or all at sea with what to do with the paperwork, the administration and form filling and handling of queries and demands from beneficiaries, there is help at hand. An executor can instruct a specialist probate solicitor to deal with the estate. Acting with the executors, the solicitor will guide everyone through what can be a very upsetting and daunting process.

The benefit of an executor appointing a probate solicitor

The benefits of an executor getting professional legal help in sorting out an estate are highlighted by the reported case of Glyne Harris. He hit the headlines as he was ordered to pay about £341,000 in inheritance tax because of his personal and legal obligations as the personal representative of Helena McDonald’s estate.

How on earth could Mr Harris be liable for tax payable by the estate? A good question and one we are sure Mr Harris wishes he had asked when deciding to administer the estate without legal help.

Mr Harris paid most of the deceased’s estate to a beneficiary on the understanding that the beneficiary would be responsible for payment of the inheritance tax from their legacy. This was a genuine mistake on the executor’s part. The beneficiary disappeared, leaving HMRC pursuing Mr Harris for the £341,000, because there was nothing left in the estate to pay the tax bill.

The court ruled that Mr Harris was responsible for the inheritance tax bill because the executor of a Will is personally liable for paying any income, capital gains tax, or inheritance tax due, even if they have not received a legacy from the estate.

Key considerations if you are asked to be an executor of a friend’s or loved one’s Will

Here are some key considerations if you are asked to be an executor of a friend’s or loved one’s Will:

1. If you are asked to be an executor of a Will, it is a voluntary role. You can decline the honour. It is essential to ask who the other executor/s will be. If the other executor is a law firm, you may feel far more relaxed about your appointment. On the other hand, if the other proposed executor is a family member whom you know you will struggle to work with, it may be best to decline the appointment.
2. If you are appointed as an executor without first being asked to act, or if your circumstances have changed after the Will was drawn up or for any other reason, you can decline to act as executor and renounce the role.
3. If you want to act as an executor, you have the option of appointing a probate lawyer to handle everything and administer the estate. The solicitor’s fees are met out of the estate. The appointment of a solicitor not only reduces your executor’s workload but also means that if a mistake is made (such as paying out the estate to the beneficiaries before the tax is paid), you can potentially pursue a claim against the solicitor under their insurance.
4. If you agree to be the executor of a Will, the Will should ideally have been drawn up professionally. Why? If a specialist Will solicitor has not written the Will, the terms may be ambiguous. That in turn can lead to more complexities and time in sorting out the estate, and ultimately to more legal expenses in resolving the mistakes in the Will.
5. As well as being personally liable for paying tax, the executor is also liable to make sure all debts are paid and that the correct beneficiaries are given the right legacy. This can be a minefield if the Will is ambiguous, leading to inheritance disputes or if there are many beneficiaries, or someone makes a claim against the estate alleging that the deceased didn’t make reasonable financial provision for them in the Will. If the executor appoints a solicitor to handle the estate, those worries are taken away from the executor.
6. An executor cannot escape liability for errors or mistakes because they were doing their best or because they made an honest mistake. That’s why most executors decide to instruct a probate solicitor to give themselves protection.

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What next if you are an executor of a Will?

Well, firstly, don’t panic. The case of Mr Harris is rare. What isn’t so unusual is the stress that executors find themselves under when trying to do a good turn and handle an estate without the time or legal know-how.

Probate solicitors can be very user-friendly, and appointing a private client solicitor to take the worry and stress out of sorting out the estate administration and paperwork following a friend or loved one’s death can be the best option. You are still the executor, but you have a professional to share the burden with you and guide and support you through the process.

For expert probate advice call our team of specialist probate lawyers or complete our online enquiry form.