The role of an executor in England: is one always necessary?
When someone dies in England, their estate which includes all their assets less what they owe at death must be dealt with according to law. If the person left a will, they likely named an executor to handle this process. But what exactly does an executor do, and is it always necessary to have one? Let’s explore the role of an executor and when one is required.
What is an executor?
An executor is a person (or sometimes more than one person) appointed in a will to manage the deceased’s estate. Their job is to ensure that the deceased person’s wishes, as set out in their will, are followed. They have a legal duty to carry out this responsibility correctly, and this can vary depending on the complexity of the estate.
Executors are often family members or close friends of the deceased, though some people choose to appoint a professional, especially if it appears to be complex. Executors don’t need any specific qualifications, but they have a duty to act in the best interests of the estate and its beneficiaries.
What does an executor do?
The executor’s responsibilities can be extensive, and the process can take months or even years in more complicated cases. Some of the key tasks include:
- Applying for probate: If required, the executor must apply for a legal document called a grant of probate, which gives them the authority to manage and distribute the estate.
- Collecting assets: The executor is responsible for gathering and protecting all of the deceased’s assets, which could include money in bank accounts, investments, property, and personal belongings. They will need to identify all sources of income and investments as part of this process.
- Paying debts and taxes: Before any inheritance is distributed to beneficiaries, the executor must pay off any outstanding debts, including credit cards, loans, and utility bills. They also need to ensure that any necessary taxes, such as inheritance tax and income tax, are settled.
- Distributing the estate: After all debts and taxes are paid, the executor will distribute the remaining estate to the beneficiaries according to the terms of the will.
- Managing disputes: Sometimes, disputes can arise between beneficiaries or over the will’s validity. The executor may need to manage or mediate such disputes, and legal help may be required.
Is an executor always needed?
If there is a valid will, an executor is necessary because they are responsible for ensuring the will is followed and the estate is distributed correctly. Without an executor, the legal process of distributing the estate (known as probate) cannot easily proceed.
However, if someone dies without a will (intestate), there is no named executor. In this case, the court will appoint someone called an administrator to manage the estate. The role of an administrator is similar to that of an executor, but the estate will be divided according to intestacy rules rather than the deceased’s specific wishes. These fixed rules set out who inherits the estate based on family relationships.
Can you avoid appointing an executor?
If you write a will, appointing at least one executor is essential. Without an executor, there is no one with the legal authority to manage your estate, which could cause delays, confusion, and potential disputes. While it’s possible to appoint a professional executor, such as a solicitor, some people prefer to choose a family member or friend they trust.
It’s worth noting that being an executor can be a significant responsibility, especially for larger or more complex estates. Some people opt to appoint more than one executor, allowing the workload to be shared. You can also appoint substitute executors in case your primary choice is unable or unwilling to take on the role.
Conclusion
In summary, an executor plays a vital role in ensuring that a person’s estate is managed and distributed according to their wishes. If a will exists, an executor is essential for the probate process. In cases of intestacy, an administrator will be appointed instead. While appointing an executor is necessary when drafting a will, it’s important to choose someone who is capable of handling the responsibilities and willing to take on the role.
The next step
Ensuring that you have an executor in place is key to avoiding unnecessary complications and delays for your loved ones during an already difficult time. If you require support with this, please get in touch with Peter Tuffin on p.tuffin@uhy-uk.com or your usual UHY adviser.
