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Executorship – To be or not to be…

Mar 1, 2021

Executors are individuals or professionals chosen to administer the Estate of someone who has passed away where that person has made a Will. The person who makes the Will (‘the Testator’) can choose as many people as they wish to act in the role of Executor, in the first instance or by substitute, but only four may prove the Will and carry out the role. Executors are expected to manage the entire administration of the Estate, from collecting financial information and informing the relevant institutions of the death, to paying the Inheritance Tax and distributing the assets according to the terms of the Will.

We would always advise someone making a Will to discuss the appointment of that person as an Executors and ensure that they are happy to take on the role. However, some Testators do not discuss the appointment with their chosen Executors and it can come as a surprise to many that they have been chosen as an Executors, and this can cause a great deal of stress.

Executors are named in the Will and their authority to deal with the assets of the Estate originate from the Will itself. However, the Executors will need to obtain a Grant of Probate naming them as Executors of the Estate to enable them to deal with some assets. For example, often Executors are unable to manage the sale of property without a Grant of Probate.

What should I do if I don’t want to be an Executor?

There are several options open to you if you have discovered you named as an Executor but you do not feel comfortable or able to perform this role. These are:

  1. Renunciation: You can decide to give up your legal right to apply to the Probate Registry for a Grant of Probate and prove the Will of the Deceased. If you are one of many named in the Will as an Executor then you may find this a simple way to step back. Once you have renounced your right to apply for a Grant of Probate you can have no further dealings with the administration of the Estate. If you wish to renounce, you should not have anything to do with the Estate before you submit your renunciation otherwise you will be deemed to have intermeddled in the administration of the Estate and you will be unable to Renounce.
  2. Power Reserved: You can decide not to apply to be named as an Executor on the Grant of Probate at the current time but you reserve your right to take up the role and administer the Estate at some future point. For example, you may feel that you do not want to step in yet but if you have any concerns in future about the administration of the Estate you can apply at any time to exercise your power.

What can I do if I don’t want somebody else to be an Executor?

  1. Professional Executors: If a professional Executor has been named in the Will, for example, a firm of Solicitors, they will consider signing a Deed of Renunciation for a fee. It is important to consider the wishes of the person who made the Will, and why they chose a particular Executor. There can be benefits to having a professional Executor that should be considered, for example they can act impartially and are particularly useful where there are tensions between family members.
  2. Lay Executors: If an Executor is another (non professional) individual it can be difficult for you to administer the Estate without them. You can ask somebody to Renounce, however they do not have to agree to this and can insist on taking up their appointment as Executor. There may be times when you have grounds to remove an Executor and if you find yourself in this situation, our Dispute Resolution department would be happy to talk through this with you.

Who can help me if I am an Executor?

Acting as an Executor can be a daunting task, especially if you are acting alone, but here at Herrington Carmichael we can help shoulder the weight of the burden. We will guide you through the entire process of administering an Estate, from valuing the assets of the Deceased to distributing the Estate in accordance with the Deceased’s Will. We can also help you navigate the trickier aspects of Inheritance Tax and Trusts.

Informing your Executors

It is important that you let your nominated Executors know if you intend for them to take on this role when you pass away. It is also important to keep your Will up to date. If you only have one Executor and they pass away before you do, the responsibility of administering your Estate may pass to someone who you would not wish to deal with your Estate. In order to ensure your Estate is managed by who you intended; we advise you to review your Will regularly.

If we can assist you with this, please contact us at privatewi@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Charlotte Woods

Charlotte Woods

Partner, Head of Private Wealth & Inheritance

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