Executor Duties & Responsibilities
If you have been asked to be an Executor, you will be named as such in the deceased’s Will. Where there is no Will, the position of Administrator is determined in accordance with a strict legal order of priority. The Rules of Intestacy also set out how the estate will be distributed.
Being named as Executor in a Will can bring with it complicated, difficult and time-consuming duties which often take up to a year to complete.
It is crucial to get everything right because the Executor is legally responsible for administering the estate in accordance with both the terms of the Will, and the law. An Executor is responsible for everything they do or fail to do, in respect of the estate.
Acting as the Executor of a Will can be a very daunting prospect because the role carries with it a considerable amount of legal, tax and administrative responsibilities. An Executor’s responsibilities last for the duration of the administration of the estate and can also carry on into any ongoing Trust.
Executor Duties include:
- Going to Court and applying for a Grant, which is the confirmation of legal authority to administer the estate. If this is done by the named Executor in the Will. If there is no valid Will, this is called Letters of Administration.
- Identifying and dealing with any valid claims against the estate.
- Completing the relevant Tax returns and paying any outstanding tax owed.
- Notifying and corresponding with all relevant organisations in order to cash or transfer the deceased’s assets and pay the debts and liabilities of the estate.
- Searching for unclaimed or missing assets.
- Preparing and distributing estate accounts to relevant parties.
- Correctly distributing the residue of the estate to the beneficiaries.
Probate is the process of proving that a Will is valid and confirming the Executor’s authority to administer the estate of a person who has died. Although Probate actually relates to an Estate where a Will was made, even if there was no Will, a similar process will still be followed and this is often referred to as Probate as well.
Am I legally responsible if things go wrong as Executor?
When you act as an Executor you are expected to act reasonably and act in the best interests of the estate and its beneficiaries. This could involve getting a fair price for any assets being sold, ensuring that relevant insurance is in place to protect any property assets and to ensure that all Tax owed is paid prior to the distribution of the estate.
It is advisable to advertise the death in line with specific statutory procedure. This allows anyone who is owed any money by the estate to be paid in full. If you don’t do this, you could be liable if someone makes claim against the estate after it has been distributed.
Finally, someone may dispute the Will. This could be to question whether the Will is valid, produce a newer Will or make further financial claims from the estate. You should always take independent legal advice on your position if this happens.
Although it is clearly the executor’s responsibility, in most instances close family or friends attend to the funeral arrangements without reference to the executor. In fact it is often some days or even weeks after the funeral that the will is located and the executor identified. However, it is desirable that the will be located and read as soon as possible after death as it may express wishes for funeral arrangements with which most executors and the family of the deceased would wish to comply.
Disputes rarely arise in relation to funeral arrangements but always the decision of the executor will be paramount. When the deceased has left directions as to his or her funeral arrangements, the executor would normally give effect to those wishes although they are not legally binding on him or her.
Where there is a dispute between an executor and a de facto spouse over possession of the body for funeral purposes, a defacto spouse has no right to possession where the executor is willing to arrange the funeral.
Where the deceased died intestate and there is a dispute amongst family members over disposal of the body, the court will favour the person/s entitled to letters of administration as the person/s having the final say. If no one has applied for letters of administration, those representing the close relatives of the deceased have a duty to bury the deceased and thus children of a deceased person take precedence over a de facto spouse in deciding on the disposal of the body. In those rare circumstances where there is a dispute between those equally entitled to a grant, such as the parents of an intestate, the court will generally resolve the matter on the basis of practical considerations, for example, by favouring the means of disposal involving the least distance of movement of the body.
Once the deceased is buried, an order for disinterment and reburial may be made in special circumstances. However, an injunction may be granted to prevent any attempt to disinter and remove the body without a court order.