When a loved one passes away, their estate (comprising assets, properties and financial holdings) becomes subject to distribution as outlined in their Will. An Executor is entrusted with the duty of executing the deceased’s wishes and managing their affairs. Tasked with a multitude of responsibilities, from settling debts to distributing assets, the Executor plays a pivotal role in navigating the intricate landscape of estate administration. Understanding the nuances and obligations that come with this role is essential for anyone considering or already designated as an Executor.
Whether you’re in the process of selecting an Executor for your Will or have already been entrusted with the role, grasping its significance is paramount. Equally crucial is ensuring that beneficiaries comprehend the Executor’s duties, particularly in navigating potential complications and the appropriate course of action therein.
Can I appoint my family/friends to be an Executor?
Yes. In fact, it is often common for people to want to appoint their spouse, parents or children as their Executor. This is because these people will often have an understanding of the Deceased’s Estate and wishes. However, some people prefer to appoint professional Executors to take the responsibility away from their loved ones, and firms of solicitors are often appointed as professional Executors.
Can Executors choose not to act?
Sometimes individuals appointed as Executors under the terms of a Will do not wish to carry out this role. It is possible for an Executor to renounce their position by executing a Deed of Renunciation – provided that they have not already started to administer the Estate. A suitable replacement is required to be appointed, ensuring the Estate can be duly administered.
What are the obligations of an Executor once they are appointed?
As part of the administration of the Estate, several duties are implied, such as the duty to act in the best interests of the Estate. This may include the duty to preserve Estate assets and to administer the Estate within a reasonable time period. If an Executor breaches their duties, the beneficiaries of the Estate may have a cause of action against the Executor.
I am a beneficiary of an Estate and I have not been provided with any information. What information am I entitled to?
Residuary beneficiaries are entitled to a copy of detailed Estate Accounts, although these are not usually available until the administration of the Estate has fairly progressed. If you have been left a specific sum of money, you would not usually be entitled to see the Estate Accounts or any other documentation pertaining to the Estate. Executors are sometimes prepared to disclose additional information relating to the Estate but this is not an obligation.
If information that you are entitled to is not forthcoming, it is possible to make an application to the Probate Registry or to the court for an order requiring the Executors to make the information available.
I am a beneficiary of an Estate and the Executor has not made any progress in administering the Estate. Is there anything I can do?
The starting point is to seek to liaise with the Executor to find out whether there is a reason for the delay, particularly if it is a complex Estate, as there are often a number of factors outside of the Executor’s control when administering an Estate. If the delays are a result of the Executor’s failure to progress the administration of the Estate without good reason, the Executor may be in breach of their duties. In these circumstances, it is open to the beneficiaries to make a claim to remove the Executor, although whether this is appropriate will largely depend on the circumstances of the case.
I am an Executor with someone else and they are refusing to engage. What steps should I take?
It will depend on how involved the co-Executor has been in respect of the Estate administration. If the matter is still in its early stages, it may be possible for that person to renounce as Executor on the basis that they do not wish to take on the role (see above). Alternatively, depending on the facts of the case, it may be necessary to take formal steps to seek to remove them as an Executor by way of a court application. It will be necessary to demonstrate to the court that such action is in the interests of the Estate and the Executor is in breach of their duties as a result of their lack of engagement.
I am an Executor and a claim has been brought against the Estate by a potential beneficiary. Can I defend the claim?
As an Executor of an Estate, you have an obligation to remain neutral in respect of any proceedings commenced by a Claimant and, whilst you will need to be joined to such proceedings, it is not for the Executor to seek to defend the claim (as this will usually be done by the beneficiaries of the Estate). The position is slightly more complicated when an Executor is also a beneficiary, as individuals in these circumstances may have conflicting roles within proceedings.
I am an Executor and a claim has been brought against the Estate. Can my legal costs be covered by the Estate?
Whilst there is a general rule that an Executor who is a party to legal proceedings is entitled to be paid the costs of those proceedings out of the relevant Estate funds, there are exceptions to this rule. If, for instance, the Executor is deemed to have incurred costs improperly by defending proceedings (i.e. by failing to maintain neutrality), the indemnity may not be deemed to apply. One way to protect against this is for an application to be made to the court by the Executors at the outset of proceedings requesting an indemnity for costs incurred in defending/bringing proceedings. This will provide the Executors with certainty regarding costs at an early stage and may inform any potential claimant’s next steps due to the impact on the Estate funds.
Matters involving Executors are case-specific and we would recommend that Executors seek advice at an early stage to ensure that all proper steps are being taken in respect of the Estate. Our Dispute Resolution team can assist with all queries regarding Executors. Please contact either Abigail Zuk at az@swinburnemaddison.co.uk or Jenna Keir-Kendrew at jek@swinburnemaddison.co.uk, or 0191 384 2441.
