Being the Executor of a will is an important legal role that many have heard of, yet few fully understand the responsibilities that go with it. Beyond what an Executor actually does, we find there are lots of questions surrounding this significant role, including, how many Executors are needed for a will. So whether you’re planning on writing your will, or you’re an Executor for someone else’s, we answer some key questions to make things easier to understand.
What Is An Executor?
First things first. An Executor is a person (or persons) chosen by the maker of the will (the testator) who has the legal authority to finalise someone’s affairs after their death. As a legal representative, their main responsibility is to follow through on the wishes of the deceased and to make sure their estate (savings, property, property etc) is dealt with legally.
The Appointment Of An Executor
Sometimes you can be asked well in advance by a close friend or family member to be their Executor, or you could be told outright you’ve been appointed. But on occasion, you might only find out after the person who wanted you to become their Executor has died.
If you’ve already written a will with your chosen Executor(s), it’s important to review it regularly. A common problem with any appointed Executor is they may have already died themselves. Either that or they don’t want or are unable to take on the role, or are just uncontactable. Any of these situations can cause problems when it comes to distributing your estate.
But you don’t have to appoint friends or family – or even beneficiaries – as Executors. You can name a professional Executor, such as a Lawyer, Doctor, or Accountant. In short, anyone can be your chosen Executor as long as they’re over 18 and are mentally capable of doing it. But, you should be able to trust them implicitly.
How Many Executors Are Needed For A Will?
As will writing solicitors ourselves, this is one of the most common questions we receive and the simple answer is you can choose up to four people to become Executors for your will. However many you choose, they must obtain a Grant of Probate (this is part of the legal process), all agree on your chosen wishes and act jointly in the signing of any documents.
Of course, this process is made easier if all the Executors are available and live close-by. As anyone can be a named Executor, there’s a chance they may be living some distance away – even the other side of the world. If that’s the case, there could be a delay in the process while documents get sent back and forth.
Do All The Named Executors Need To Be Involved?
In wills where more than one Executor is named, it’s not legally necessary for all of them to be involved. There might be times when one or more of the named Executors can’t, or simply don’t want to act. However, the other Executors can continue.
They must serve formal notice of the application for the Grant of Probate on the Executor who is dropping out. The Grant will then record that power is reserved to the Executor who is not on the application to then become involved at a point further down the process if necessary.
How Do Executors Get Legal Authority?
In most cases, the Executor(s) will need a Grant of Probate in order to complete their legal requirements. The only exception to this would be for very small final estates. Though the Grant of Probate is a legal court document, most estates are dealt with in the Probate Registry unless there’s a formal dispute.
The Executor(s) need to apply for the Grant of Probate in the first instance. They’ll then, depending on the size and complexity of the estate, have to pay any Inheritance Tax due to HMRC or make a condensed return through the Probate Registry. When the application has been made and any fees paid, the Grant of Probate will be issued.
It’s this formal Grant of Probate that allows the Executor(s) legal permission to deal with the estate on behalf of the deceased. Copies of the Grant displaying a formal seal are available if more than one is required.
Do Executors Have To Pay Inheritance Tax?
This is one of the more controversial issues concerning Executors. Until Executors obtain the required Grant of Probate, they can’t access the financial accounts of the deceased. However, they won’t be able to get the Grant of Probate until any due Inheritance Tax is paid. It’s a ‘chicken and egg’ situation and can be a costly problem.
Fortunately, it’s usually possible to arrange for any tax to be paid from the deceased’s accounts directly to HMRC. If it’s not possible to do this for any reason, it would be down to the Executors to find an alternative method of payment, either by taking a loan or paying out of their own pocket. Either way, it’s the duty of the Executor(s) to disclose any and all information to HMRC in full or they could face heavy penalties.
Are Executors Liable For Any Estate Debts?
Fortunately, Executors aren’t personally liable for any debts left behind by the deceased. The only requirement is that any debts or claims made against the estate are paid from the money or other assets left by the deceased at the time of their death. These debts need to be paid and should be calculated in full before beneficiaries can claim any inheritance.
If, as an Executor, you distribute the estate too early, you may become personally liable for those debts. However, you can get protection against any unknown debt by advertising for claims under the Trustee Act 1925. Once the Grant of Probate is in place, Executors can settle any debts and distribute the estate between the beneficiaries as the deceased wished.
The role of Executor is an important one. But it’s a role that involves a certain amount of commitment and it can be difficult for various reasons. While you’re acting on the final wishes of a close friend or relative, you’re also responsible for fulfilling important legal obligations. There may also be occasions when it’s necessary to go to court to overcome difficult decisions or areas of dispute.
If you need any help or advice about choosing an Executor or becoming one, our will writing solicitors can give you all the information you need. Call us on 01243 945054 or 01903 257477 and get in touch with us today.
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