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7 August 2013 | Comment | Article by Matthew Evans

Choosing an executor: who do you trust with all your worldly goods?

Georgia discusses the importance of appointing trustworthy executors following recent cases in the news of appointed executors stealing money from an estate to spend on themselves.

In the light of Roman’s recent blog “Theft of estate assets results in criminal conviction for beneficiary”, the importance of appointing trustworthy executors is an issue worth elaborating on. Unfortunately the case Roman reported on is not isolated. A further example concerns Christopher MacKnight from Bovingdon who was appointed as executor of his friend Derek Roberts’s will.

Mr MacKnight was found guilty of theft on 17 July 2013 having ignored his friend’s legally binding will which stipulated that a substantial sum of money was to be paid to a charity. Instead he transferred the sum into his personal bank account and squandered it on an extravagant lifestyle.

When making a will, choosing your executors wisely is prudent. So ask yourself, do you really know your executors?

Who to appoint as an executor?

You can appoint anybody as executor of your will, as long as they are eighteen years or over at the date of your death, have not been declared bankrupt and are mentally capable of acting as an executor.

You can appoint up to four in total but if you are appointing them to act jointly, you must be certain that it is practical for them to make decisions together, i.e. living within close proximity of each other. You can even appoint those named as beneficiaries of your will as executor(s).

Who do you trust with all of your money and land?

Being appointed as an executor is a position of trust, your trust. Therefore you must be certain that you are appointing a trustworthy, honest person who will indefinitely put the provisions of your will into effect. You must have no doubts in your mind as to whether or not they are the right person to act as executor of your will. Only appoint someone you know will be dependable. After all, it is your land, your money, your personal possessions and ultimately the interests of your beneficiaries that will be at risk. Who do you trust?

Appointing a substitute executor

If you are appointing a sole executor, it is prudent to appoint a replacement to act in the event that they die before you or are otherwise unable or unwilling to act. If you do not appoint a replacement, the court will appoint a personal representative not of your choosing to act as executor in their place. This person may not be someone you would have considered to be appropriate for the position. Therefore, whilst you have the chance to appoint a replacement, take the opportunity and choose someone you feel comfortable doing the job in the light of the above.

What are executors required to do?

The executor(s) of your will will be under a duty to:

  • act honestly and in good faith;
  • not make personal gains from your estate unless specifically allowed in your will to do so; and
  • not put themselves in a position where their interests conflict with those of your estate.

Some of the tasks they will be required to undertake to administer your estate are:

  • interpreting your will;
  • drawing up schedules of assets and liabilities;
  • contacting all asset holders and creditors;
  • preparing draft accounts and arranging for any inheritance tax and debts to be paid;
  • drafting an application for the grant of probate and making an application to the Probate Registry;
  • communicating with all beneficiaries; and
  • distributing the estate in accordance with the will.

You can find out more information from our ‘Back to basics; things you need to know when someone dies’ page.

What if you don’t know who to appoint?

Acting as executor can be complex and an executor may be personally liable for any losses to an estate. It is for this reason that many people consider appointing a professional.

The benefits of appointing a professional body, such as a firm of solicitors, to act as executor of your will include:

  • expert advice in dealing with the administration of estates;
  • independence and a duty to act in the best interests of your estate, remaining neutral at all times; and the ability to deal with complex matters which may arise.

To summarise, be sure that whoever you appoint as an executor, you can trust them to act in the interests of the estate and its beneficiaries. If your estate is particularly complex or you are unsure who to appoint as executor, seek advice before making a will and avoid making the same mistake as Mr Roberts.

Author bio

Matthew is a partner and heads up the firm’s private wealth offering. He is responsible for the development, implementation and long-term strategy of the team.

Matthew has a UK-wide reputation in the field of contentious probate, recognised by his clients and peers in the leading legal directories.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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