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Wills and Probate specialist What are the duties of an executor of a Will?
An executor(s) named in a Will has the legal authority to administer an estate, but their duties and responsibilities can be onerous. Ultimately, they must ensure that the deceased’s estate is wound up properly and that their wishes, as stated in the Will, are carried out. Among the main duties are:
- registering the death;
- arranging the funeral;
- valuing the estate;
- paying any inheritance tax due;
- applying for probate;
- sorting out the deceased’s finances;
- placing a notice in The Gazette;
- distributing the estate in accordance with the Will;
- keeping accurate estate accounts.
Personal liability of executors
Executors must understand that they have a duty of care to their co-executors and the beneficiaries of the estate. In certain situations, that duty can also extend to third parties. This means that when carrying out their duties, they must exercise a reasonable level of skill and care. If an executor breaches their duty of care, they are personally financially liable for any losses incurred.
Just because somebody is named as an executor in the Will, does not mean they must accept the appointment. A named executor can renounce their appointment as long as they have not intermeddled in the estate. For those who renounce, the personal liability element may be a factor in their decision. It’s also why people often appoint professional executors such as solicitors, either in addition to, or instead of, family members or friends. But nothing is stopping non-professional executors from accepting the appointment and then instructing solicitors to undertake the work on their behalf. If there is subsequently a claim for breach of duty against the executors, they may be able to pass on any liability to the solicitors, who will be insured.
Can an executor of a Will be a beneficiary?
There is a common misconception that an executor cannot be a beneficiary of a Will. In fact, it is very common to appoint main beneficiaries, such as your partner or your children, as executors. However, it’s crucial that a beneficiary does not witness your Will. If they do, although the Will remains valid, the witnessing beneficiary will not be entitled to their legacy.
Can an executor witness a Will?
An executor can witness a Will as long as they are not a beneficiary.
Can an executor change a Will?
The simple answer is no, an executor cannot change the terms of a Will. However, see Deed of Variation: changing a Will after death.
How to remove an executor from a Will?
You can remove an executor at any time by making a new Will or a Codicil to your existing Will. But after your death, removing a troublesome executor is not straightforward and involves an application to the court. The court will not remove an executor lightly as they will be keen to respect your wishes in appointing them in the first place. Generally, the court will only remove an executor if:
- they have disqualified themselves since their appointment by being convicted of a crime and imprisoned; or
- they are incapable of performing their duties, perhaps as a result of temporary or permanent disability; or
- they are otherwise unsuitable for the role, usually the result of a conflict of interest or serious misconduct.