My role as an Executor – Kathryn McCullough (Private Client Solicitor at Meaby & Co)

What is an Executor?

An Executor is the person responsible for administering the estate of someone who has died leaving a valid Will. This article focuses on there being a valid Will with Executors who are able and willing to act in the administration.

If there is no will, or those named are unable or unwilling to act, an Administrator (usually one the beneficiaries under the Will) shall need to be appointed to administer the estate. An administrator’s obligations are similar to those of an Executor. For further information on Administrators and/or the Intestacy Rules, please see our October edition article, ‘my role as an Administrator’ for further information.

Who can act as an Executor?

A person can act as an executor if they are appointed in the Will of the Deceased, provided that :-

1. They are at least 18 years of age; and
2. They have full mental capacity (they should inform their acting Solicitor if they have received a diagnosis which might affect their capacity for example, a dementia diagnosis etc); and
3. They are not bankrupt nor in the process of being made bankrupt; and/or
4. They are a professional (such as a Solicitor or Accountant).

A beneficiary under the Will may be an Executor.

Grant of Probate

While the power of an Executor emanates from the Will, most organisations will not recognise the Executorship until the Probate Registry has issued a Grant of Probate. This document gives the Executor the authority to administer the deceased person’s estate.

On the 2nd November 2020, new rules came into force which required applications for the Grant of Probate to be submitted online. HMCTS has recently extended its grace period to allow paper applications to be accepted until the 11th January 2021.

How many people can act as an Executor?

1. The deceased can appoint up to four Executors; and
2. All decisions should then be made jointly by the Executors.

Can the Executor renounce their Executorship?

A names Executor is not legally obliged to take up the Executorship. As long as the Executor has not become too embroiled in the Administration of the estate (“intermeddling”), they will be able to renounce their Executorship through a “Deed of Renunciation.”

What is my role as an Executor?

Once the Executor has agreed to accept their role as Executor, they will have a responsibility to the beneficiaries to ensure that the Estate is administered properly. This means establishing
the value of the Estate, paying any debts, including tax, and distributing the estate to the beneficiaries in accordance with the Will. The law requires this to be done with due diligence.
Often, the Executor will appoint a Probate Solicitor to assist them with the administration.

The administrative tasks may include:

• Registering the death;
• Ensuring that there is no later Will than that which you are propounding;
• Opening an Executor’s bank account;
• Making funeral arrangements;
• Identifying the beneficiaries;
• Establishing the value of the deceased’s assets;
• Ensuring that there is adequate insurance in place for the deceased’s properties;
• Preparing a Schedule of Assets and Liabilities;
• Assessing the Inheritance Tax position and arranging for the payment of the tax;
• Completing the necessary Inheritance Tax Account;
• Preparing an application for a Grant of Probate;
• Calling in the assets upon receipt of the Grant;
• Selling assets, if necessary, to realise cash for the purposes of the administration;
• Distributing the estate to the beneficiaries;
• Transferring the assets to those entitled; and
• Preparing Estate Accounts

Does the Executor need to take out home insurance for the deceased’s residential property?

The Executor can be personally liable if there is any damage caused to the deceased’s residential property and they have failed to take out adequate insurance.

An Executor should contact a home insurance provider to :-

• Make sure that the deceased has taken out valid home insurance;
• Ensure that the home insurance was not invalidated upon the deceased’s death; and
• Take out home insurance if there is currently no home insurance in place or if the home insurance has become invalid.

If the deceased was paying home insurance, it is strongly advised that the Executor continues to make these payment (keeping receipts in order to reclaim the money from the estate).

When can the Executor sell the deceased’s property?

Any major assets in the deceased’s sole name (such as a residential property) cannot be sold until a Grant of Probate has been obtained.

Can the Executor sell the property under market value?

The Executor you must ensure that any property is sold for full market value. If the Executor fails to achieve market value for an asset, they risk exposing themselves personally to a claim from the beneficiaries if they have failed to achieve the ‘best price’.

To establish what the ‘best price’ or current market value is, it is advisable that the Executor instructs three estate agents to provide three independent property valuations. Alternatively, or in addition, the Executor may wish to instruct a surveyor to provide a property valuation.

It may be advisable for the Executor to consult the beneficiaries before selling an asset to ensure that they are satisfied with the price. Technically, the Executor does not have to consult with the beneficiaries however, it is advisable that they notify them.

There is a practical advantage to consulting with the beneficiaries as this can avoid a claim later on that the Executor sold the property for less than its market value.

Can the Executor be liable to the beneficiaries and creditors for any unpaid debt?

Executors who have distributed assets of the deceased are personally liable to any beneficiaries or creditors for any unpaid debts and liabilities even though they may not have been aware of them at the time of distribution. In order to protect themselves, they can advertise for creditors by giving notice of their intention to distribute assets, requiring any creditor to send in particulars of their claim within the stated time (not being less than 2 months from the notice date). The notice must be placed in the London Gazette and paper local to where the deceased lived.

Can the Executor charge for the work they carry out as an Executor?

An Executor is unable to charge for their work as an Executor (save for reasonable estate expenses) unless they are acting as an Executor in their capacity as a professional.

Can the Executor claim back their Executor expenses?

The Trustee Act permits the Executor to reclaim their out of pocket expenses, i.e. those sums that they expend in discharging their duties as a Trustee. The Executor should ensure that they keep all their receipts and present them to their acting Solicitor who will factor in these reasonable disbursements when prepare the Estate Accounts.

Should you have any queries and/or wish to seek guidance to ensure that you are acting in line with your fiduciary duties, then please do not hesitate to contact Kathryn McCullough (Our Private Client Solicitor) at kathryn@meaby.co.uk

This article is intended for general purposes only and does not constitute legal and/or professional advice. Please seek legal advice before proceeding with your matter.