What is the legal role of an executor?
An executor’s role is to collect in assets, pay debts and then distribute the estate of the deceased as specified in their will.
How is an executor chosen for the role?
The deceased normally chooses an executor in his or her will and commonly more than 1 person. The chosen person may be a professional such as a solicitor or accountant or can be a family member or a combination. It is wise to choose someone who is likely to be willing and able to undertake the role and to advise such persons that you would like them to assist when you pass away. Executors can decline the role also.
If no executor is appointed, for example when no will is made, the role of administering the estate is subject to the statutory intestacy rules.
Are executors paid for work carried out?
The executor will be able to claim back any amount they may have become personally liable for when arranging the funeral or other expenses, but any such costs will need to be fully documented. There is no legal obligation for an executor to pay out monies from his, her or their own pocket at all. Professionals may also charge for their time and many wills , where the will maker decides they want a professional executor, will contain a charging clause, enabling the solicitor, accountant or other professionals to charge for their services. If no professional executor is appointed or there is no charging clause, it is possible for the named executors to obtain legal or other advice but they would be well advised to explain their plan and reasons for seeking help, to the beneficiaries and to obtain approval. This way they avoid criticism or challenge later.
How much work is the executor expected to perform?
This will depend on the size and complexity of the estate. If it is small then there is not much to do apart from closure of personal bank accounts and distribution of assets. Larger or more complex estates require far more time and effort, but also can benefit from experienced advice. If there are lots of different types of assets or debts, where it is unclear whether there are further assets or debts, where beneficiaries cannot be found or where tax may be payable, or where trusts have been set up in a will, these can all be highly complex issues where external advice may be sought.
What will the executor be expected to do?
They will sign a large number of documents and deal with correspondence. They will locate and identify assets and distribute them and pay debts.
The executor is warned not to underestimate the time required for this type of task.
A family member claims something stated on the will is different to that which the deceased promised. What should the executor do?
The law requires that the executor comply with the will’s specifications. This means that even if a family member or friend was promised something for a number of years and this contradicts with the will they won’t be entitled to it. There are situations where family members may make a dependency claim or flag up a dispute. In those circumstances, the executor should seek legal advice before simply ignoring the challenge and distributing assets.
Should executors instruct solicitors?
Some wills expressly provide for this and/or allow the executors to instruct solicitors and pay fees. In many cases, the executors may need legal advice if the estate proves complex or unclear. If there are family disputes or problems, this is another good reason to instruct lawyers. More solicitors now offer flexibility and will not insist on being instructed to effectively take over the administration and charge a percentage of the value of the estate. Most solicitors will now offer an hourly rate or fixed fees for various aspects. At our firm, we also provide a helpful fixed fee service to ascertain at the beginning the value and complexity of the estate, enabling executors to make more informed decisions about whether external legal advice will be needed going forward..
If you need legal advice on probate, please do get in touch, we offer cost effective and knowledgeable advice and are a friendly bunch!
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