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13 November 2018 | Comment | Article by Roman Kubiak TEP

What is an executor?


The period following the bereavement of a loved one is difficult. It can be made more difficult if you are appointed as executor of your loved one’s estate, especially if you are unsure what this means in practice.

Where a person dies it is often necessary for someone to deal with their affairs, and make sure that the terms of their will are followed.

An executor is a person appointed in the deceased’s will to undertake that function.

In effect they step into the shoes of the deceased and take control of their assets.

Usually, but not always, the executor will need to obtain a grant of probate in order to gain the legal authority to deal with the deceased’s assets. For example, an executor cannot usually sell any property the deceased owned until they obtain a grant of probate.

Acting as an executor is not always a straightforward task. Some of the duties can be quite demanding, such as obtaining satisfactory valuations of the estate assets, completing the legal paperwork and identifying the amount of tax due.

Difficulties can also arise where there is conflict between the beneficiaries, or where a third party purports to make a claim against the estate.

Though executors can choose to undertake the task themselves, many executors appoint a legal representative to help with the administration of the estate.

What if I don’t want to be an executor?

There are many reasons why a person may not want to act as an executor. For example they may be suffering with ill-health, already have existing business or family commitments or living abroad.

There may also be reasons from a legal perspective why a person may not want to act, for example if it is likely that there will be a claim against the estate or if there is a suspicion that the estate is insolvent.

Where there is more than one named executor then one option could be to agree that the other executor takes the grant of probate, with your “power being reserved”. This would not prevent you from acting later, if necessary under what is known as a “double probate”.

Another option would be to “renounce” as executor. This, in effect, means you surrendering your entitlement to administer the estate (although in some cases it can be retracted). Note that a person cannot renounce from the role if they have “intermeddled” in the estate for instance by collecting in assets and paying liabilities.

In some instances, it may be possible for you to appoint someone else under a power of attorney to act on your behalf. This is a practical option for executors who have been appointed without a co-executor and in the absence of an individual willing to take up the role.

This can be a good option where a person does not want to administer the estate themselves, but does not want to renounce.

All of the above options have positives and negatives. It is worth taking the time to think about your options before making any formal decision. If you are unsure what you should do, or would like to discuss any of the options above, please contact our Tax, Trusts and Estates department on 029 2010 3914.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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