Choosing your executor

Insights - 16/07/2021

The term ‘executor’ derives from the Latin word ‘execut’, which means “carried out”.  An executor is appointed by somebody to carry out the terms of their will, but what exactly does this involve and what responsibilities does an executor have?  Both the executor and the person appointing them (known as the ‘testator’) should understand what the role entails.

The executor should be made aware of the extent of their duties (and, importantly, any potential liabilities) to satisfy themselves that they can do the job that is required of them.  This, of course, relies upon the testator notifying their chosen executor of their appointment at the time they make their will.  Although there is no legal obligation to notify them, it is rarely desirable for the individual to discover this only after the testator has died by which time their appointment under the will is already effective.

In the case of the testator making the appointment, only once they understand what they are asking their executor to do are they able to make an informed decision about whether that individual is in fact the right person for the job.

The duties of an executor go beyond simply identifying the assets and liabilities of the estate. If the testator has no living relatives, would their executor know that it falls to them to register the death and attend to the funeral arrangements?  Are there any pets that need to be taken care of, and what arrangements need to be put in place to ensure their immediate welfare needs are met?  There may also be a vacant property to deal with, and the executor must ensure that this is kept secure, well maintained, and that all appropriate insurances are in place.  How easy will this be to manage in practice if the executor lives some distance away, or overseas?

The executor must declare that the information that they are reporting to HMRC is correct, and so they must be satisfied that they have made reasonable enquiries about the testator’s estate and not overlooked any aspects.  They must also arrange for any Inheritance Tax to be paid, but are they aware that they are personally liable to pay this?  This should be borne in mind especially if the estate has been settled but it later transpires that there is additional tax to pay.

Making a will allows you to choose who should act as your executor, a decision which is likely to be based upon factors such as their relevant skills, location, age and capacity, both in terms of their mental capacity and how much time they can commit to the role.  Existing executor appointments may need to be reviewed, and the will updated, if you have concerns about their ability to cope with such a huge undertaking or have doubts about their suitability.  Or perhaps your chosen executor has since died or no longer has capacity to take up the appointment under your will.

If you think that this might affect you, please get in touch with our Private Client team who would be happy to assist. 

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.