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ExecutorsProfessor Graham Middleton - Honourary Life Member - The Master Guild Of Will WritersExecutors

EXECUTORS

WHAT IS AN EXECUTOR?

In England & Wales Executors & Trustees
The terms Executors or Trustees — effectively can be regarded as interchangeable. The Executor carries out the instructions in a Will while the Trustee would oversee the managing of funds that were not to be distributed immediately. In theory it would be possible to appoint Executors and separate Trustees but in most standard Wills, included those created by the Will Writer program, these appointments are:

' .... to be my Executors and Trustees (hereinafter called 'my Trustees' which expression shall include the Trustee or Trustees for the time being hereof)'

This means that the rest of the Will can refer to 'my Trustees' without having to mention the fact that they are also Executors or to the fact that there may only be a single person appointed. As the terms imply, these are people 'trusted' by the Testator to carry out his wishes.

When it comes to proving a Will the Probate Office will only recognise a maximum of 4 executors being involved in the administration of an estate. Even four people may find it difficult to share out the tasks so in practice it may be only one or two of those named who actually carry out the work involved.

Anybody over the age of 18 who is sane and willing to accept the appointment can be named as an Executor when making a Will. One, two, three or four members of the immediate family or close friends are ideal as Executors. If the Testator wishes, professional Executors such as firms of solicitors, accountants and banks may be appointed but they will need to charge their normal fees for the work and a charging clause must be included, when you make a Will, for this purpose.

An alternative is to appoint only non-professional Executors and to include a clause permitting the employment of a professional for part of the work if required. This leaves the choice open to family who may save some or all of the potential fees.
We suggest that at least two executors are named, for example the husband or wife and a brother, sister or close friend; for elderly testators it's advisable to have at least one of the executors as someone from the next generation like a son, daughter or nephew even if they are not going to be beneficiaries immediately. 

Banks, firms of solicitors and accountants are always pleased to be named as executors. If you want to appoint executors from these groups make sure that you realise the possible fees involved and that there is an alternative. Even a small percentage from a modest estate can amount to a sizeable deduction from the family. Banks have been known to charge as much as 5% of the total estate. Once appointed, an Executor cannot be dismissed short of evidence of serious misconduct.
Many people from all walks of life undertake the responsibility of administering someone's estate and there are no real problems but it can be time consuming. Often other members of the family can help by making enquiries and writing the necessary letters. Generally most families would like to have the opportunity to sort out their own affairs and avoid having to pay fees which they may feel could have been saved.

Although the list of duties of an Executor may appear lengthy, the tasks can be undertaken by anyone especially if they seek advice and clarification throughout the process. If the Executor's circumstances have changed at the time of the Testator's death - ill health, pressure of other work, lack of recent contact with the deceased, etc. - the Executor can renounce his right to take out the grant of probate.

It is not essential to tell someone that they have been named as an executor in a Will although common sense dictates that it would be wise to discuss it with the person concerned when you make a will; very few executors will refuse but they may want to ask questions about what is involved.

WHAT ARE THE EXECUTORS' DUTIES?

Initial Duties

1. Register the death of the Testator. Obtain copies of the death certificate - several may be required not only before the funeral takes place but also for each of the funds that may have to be released or transferred e.g. bank accounts, insurance policies, shares and other equities. Try to gauge how many copies are needed. Many organisations will need sight of an original Death Certificate before releasing funds. Copies obtained from the Registry of Births Deaths and Marriages are regarded as 'originals' as opposed to a photocopy of the certificate.
2. Arrange the funeral. The cost will usually be the first expense paid for from the deceased's estate. Make enquiries about the existence of a prepaid funeral plan - these are becoming increasingly popular amongst retired people wishing to guard against the effects of inflation. If a Testator does decide to purchase a funeral plan Executors should be informed immediately and given the location of the relevant documents.

3. Apply for a Grant of Probate via the nearest Probate Registry.


4. Arrange to open a Personal Representative's bank account. This will be used for the receipt of money due to the Estate and any loan arranged to pay an Inheritance Tax bill and/or probate fees.

5. Inform all relevant persons and organisations - banks, building societies, life assurance companies, employers, local authorities, Inland Revenue, benefit agencies etc.

6. Arrange for a valuation of the Estate. This will include the house and its contents, other personal effects, investments in savings plans, equities, life policies, building societies etc. Draw up a detailed schedule of all the Testator's assets.

7. Draw up a full schedule of debts that must be paid from the proceeds of the Estate. These will include mortgages, income and capital gains taxes, bills, credit cards, loans and overdrafts.

8. Complete the forms required by the Inland Revenue Capital Taxes Office so that it can be established whether any Inheritance Tax is due.

9. Complete the probate forms and send or take them to the Probate Office along with the original Will, the death certificate and the Inland Revenue account.

SUBSEQUENT DUTIES

1. Provided that the case is fairly straightforward, an appointment will be made for the personal representative to 'swear the papers' within about 5 - 6 weeks of receipt at the Probate Office.

2. When Inheritance Tax is due the Executor's account of the Estate is passed to the Inland Revenue and the Grant of Probate cannot be issued until the tax is paid. There will be circumstances where part of the Estate has to be sold to pay Inheritance Tax and if this is the case banks can arrange loan facilities to pay the tax straight away.

3. Copies of the Grant of Probate should be sent to everyone who owes money to the Estate. The Executors now have a legal authority to pursue any debts owing to the Estate.

4. When the Grant of Probate is received, the Estate can be divided according to the terms of the Will. The Executor must prepare and sign accounts showing who has received what from the distribution. They must be able to show that they acted in accordance with the terms of the Will in case there is any dissent from the family of the deceased.

5 . All papers, including the Grant of Probate and the accounts must be stored safely for a period of 12 years.

In Scotland, when a person dies, an executor administers his property. The property is known as an estate.

There are two types of executor. There is an executor nominate, and an executor dative.

Executor nominate: An executor nominate administers the estate of a deceased who left a valid will.

Executor dative: An executive dative administers the estate of a deceased who did not leave a valid will. The deceased is said to have died intestate.

In practice both types are called executor or executors, the estate that an executor administers, is an executry.

For further details, please contact me at Perfect Wills.

 
 
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