Probate
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PRINT THIS PAGE - EXECUTOR OF A WILL
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ADMINISTRATORS DUTIES - EXECUTORS DUTY - EXECUTOR OF A WILL
People who have been chosen by a testator to deal with their assets after they die are often inexperienced and following the death of their friend or relative will often contact a solicitor to represent them to deal with administering the estate on their behalf however this is not always necessary. An executors duty may not always be problematic particularly in a small estate with few assets. It is also worth mentioning that these requirements apply equally to an administer who derives his authority from the court in cases where there is no will or where no executor is appointed under a will whereas an executor of a will, derives his authority directly from the will, confirmed and verified by the court in documentary form issued upon application.
A potential executor of a will is not under a duty to accept his appointment (and is not responsible for any losses incurred in failing to do so) and indeed may be unaware of the appointment until some time after the testator has died. In the case of delay in accepting the appointment an application can be made to the Probate Registry for an issue of a citation for an executor to accept or refuse a grant within a reasonable period of time failing which their appointment in the will may be forfeited or alternatively it is possible for an interested party to make an application under s116 Supreme Court Act 1981 for that person to be passed over as an executor.
An executors duty is conferred following appointment which can be express or implied or under a power all three of which can be conferred by the testator in the will or occasionally in some unusual circumstances by the Court. The person provisionally appointed can fully accept the position by applying for a grant of probate or by ‘intermeddling’ in an estate prior to the formal grant by the court however it should be mentioned that carrying out certain humanitarian acts such as arranging a funeral are not considered by the court to be acts of intermeddling and appointment does not therefore naturally follow. A person who intermeddles in an estate before formal appointment of an executor of a will (not necessarily the intermeddler) may be held to be personally liable for their actions.
Administrators are in a very similar position and their responsibilities match executors duties however the method of their appointment varies and they derive their powers not from a will but from the Administration of Estates Act 1925 and the court that appoints them. Letters of administration are necessary in cases where there is no will and also in cases where no executor has been appointed under a will. The Non Contentious Probate Rules 1987 govern those who may apply for grants of letters of administration with will annexed or letters of administration. An administrator has no power until the issue of the grant unlike the executor of a will who derives his power directly from the will as soon as the testator dies.
An executors duty applies equally to an administrator and is detailed in the Administration of Estates Act 1925 (an executor has a duty to collect and get
in the real and personal estate of the deceased and administer it according to law) and in the Trustee Act 2000 (an executor must exercise such care and skill as reasonable in the circumstances which includes arranging adequate insurance and can delegate these powers to another person for example a solicitor or a stockbroker) which variously indicate that the general duties of an executor are to :-
- collect and safeguard assets
- pay the debts of the deceased
- distribute the estate to the beneficiaries
Items which are not part of a deceased’s estate and which therefore do not form part of an executors duty include :-
- property held as joint tenants
- property enjoyed as a life tenant
- gifts made in contemplation and
conditional on death
- policies written in trust under the Married Woman’s Property Act 1882
- lump sums payable under pension schemes or death in service schemes
- foreign property
- trust property
Whilst there is no set time during which an estate must be resolved it is generally accepted that one year is reasonable and excessive periods over and above one year that cannot be justified by unusual circumstances are unreasonable and can lead to legal action being taken by a beneficiary against an executor who may become personally liable for any subsequent losses.
When all of the assets have been collected an executor must pay the funeral expenses and all administrative expenses together with the debts and liabilities of the deceased. The executor must also pay any inheritance tax which is due on the value of the estate and will be personally liable if he/she fails to do so. In addition provision should be made to ensure the payment of any inheritance tax on lifetime gifts which are initially the responsibility of the recipient who should pay the tax within 12 months of receipt of the gift failing which the executor becomes responsible for payment of the tax.
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