Wills – the duties of the Executors
I will do a quick oversight of the duties and then in later blogs go into more detail on the various aspects.
When you appoint someone or are appointed as Executor, it is both an honour and a burden. It is an honour that the person appointing you thinks enough of you to leave you to sort out their affairs (and to some extent their life) after they’ve passed away and cannot sort it out for themselves. It is also a burden; as if you make a mistake in dealing with the administration in some circumstances you can be personally liable for your actions. The personal liability extends beyond things that everyone would expect, such as stealing from the estate.
In broad terms the administration of the estate is divided into 4 tasks and they come in order:
1. Establish the assets of the estate
2. Apply for the Grant of Probate
3. Gather the estate in
4. Pay out the estate to the appropriate parties
Seems simple, but it’s not that simple at all usually.
Firstly, as I’ve already said and will no doubt say again many times, family don’t get on. I meet lots of families and each year I usually meet approximately one family where everyone gets on, all the rest fight, to a greater or lesser extent. This is why it is an honour to be passed on the responsibility of dealing with the estate amongst the carnage of a family feud. Some family disagreements are just niggles and are not all out warfare, but the Executor has to treat everyone fairly, so even if they are part of the family and on one side of the feud, they have to treat the other side fairly. Fairness to all parties is not optional; it is a key duty that the Executor owes to the estate.
The personal liability can be for a failure to do any part of the above roles. These 4 duties above are in a very oversimplified version, so don’t be fooled by the simplicity of the list. Dealing with an estate, even a “straightforward” estate can have its complexities. Each one of those sections has its complications.
There is no such thing as a straightforward estate, so if you are appointed as Executor, beware of the pitfalls of the role. Some people choose to appoint as Executors a firm of solicitors, so that they know that the job will be done properly and if it’s not done properly, the firm has insurance that can compensate. This may be the right thing for some estates, but professional administration costs money and it may be cheaper to appoint a lay person. The lay Executor can always seek legal advice if they need to, but whether they do or not is their choice.
If the family really is feuding badly, then professional Executors can often be the way forward. They are neutral to the factions of the feud and the family members will perceive them as that.