Acting as executor
Careful consideration must always be given to the appointment of your executors when making a Will. As a reminder, an executor is responsible for carrying out the wishes of the person who has died, ensuring their assets are collected in, their liabilities paid and distributing the estate in accordance with the terms of the Will or law of intestacy.
Unfortunately, being appointed as a personal representative (PR) which is a generic term for an executor appointed under a Will or an administrator appointed under intestacy, is not always simple and many people do not understand what is involved and the time it takes to fulfil your duty as a PR. Administering an estate can be a lengthy process and once a person has started acting as a PR it is not possible to step down from the role voluntarily. Many people are unaware that an executor could be held personally liable if something goes wrong, whether intentional or not and you may have to put things right financially yourself.
Here are just a few examples of what can go wrong when acting as a PR:-
- Misunderstanding the meaning of the Will. Not all Wills are written in ‘plain English’ and can be difficult to follow if you are not familiar with the language used in a Will. A PR may misunderstand the meaning of the Will and how the law applies and distribute the estate incorrectly.
- A PR may fail to keep clear and accurate records. It is imperative that Estate Accounts are prepared detailing every financial transaction of the estate, not only for the beneficiaries but the Court and HMRC also have the power to request accounts.
- A PR may mix the estate funds with their own personal funds, by using their personal bank account when administering an estate. This is a breach of the executor’s duties.
- There is a strict order outlined in law detailing the order in which the estate should be distributed and any failure to follow it could result in the PR being personally liable.
How to avoid problems:
- Talk to the person who you wish to appoint as your executor. Ensure they are fully aware of what the role entails and are happy to take on the role. It is common to appoint a minimum of two people, so be sure that they get on and work well together.
- Appoint people who you trust. As part of the role the PR will need to liaise with beneficiaries so it is important, they can act fairly and impartially. When a loved one passes away it is a very difficult time for family and friends. There is a lot to manage so it is important to consider whether your PRs will have the time to take on the role.
- You can appoint a professional executor in certain circumstances i.e., where there is no-one who could sensibly fulfil the role, there are difficult family relationships, or the assets of the estate are particularly complex. A professional executor would charge for their time in carrying out the role, but you have peace of mind knowing that the role is being carried out correctly.
- Keep accurate records of your assets, ensure your executors are aware where your original Will is stored and where they can locate the records when the time comes.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org