An Executor is responsible for fulfilling a person’s wishes as per their Will after they pass away. But what can happen if you make an unwise choice? Senior Associate Kerry Hull explains.
When providing instructions for a Will, a person making the Will (known as the testator) shall choose an individual or individuals to administer the Estate. The Executor takes on the job of fulfilling the testator’s instructions according to the terms of the Will. The job of an Executor is to identify the assets in the Estate and to take control of them. The Executor will then settle any debts or liabilities of the person who has died before distributing the net Estate to the Beneficiaries referred to in the Will.
Anyone aged 18 or above can be an Executor of a Will. Usually, a close family member or a professional like a Solicitor or Accountant are selected.
There are circumstances where a Will may be challenged, but more often than not the terms of a deceased’s Will are fulfilled.
The choice of Executor nevertheless is an important one.
Above all, any appointment of an Executor must be to someone you trust and that you are confident that they will perform their duties appropriately. Added protection in the appointment of more than one Executor can be a wise step to take thereby ensuring that the terms of the Will are fulfilled, and also spreading the burden of the administration and dealing of paperwork.
A good example of a poorly selected Executor was the recently publicised case of David Loveday in September 2017. Mr Loveday was entrusted in the appointment as Executor to the Will of his neighbour Anita Border after her death in 2015. Her net Estate was to be split equally between two of her friends, Mrs Gibbs and Mr Loveday’s partner, Emma Cullen. Mrs Gibbs received nothing from the Estate and by the time Mr Loveday was brought to justice, there was only just over £1000 left in the bank account. Mr Loveday having sold the deceased’s home had spent it in Argos, on Netflix, holidays and cars. Having been found in contempt of Court Mr Loveday was sentenced to 6 months imprisonment. Mrs Gibbs was faced with having to remove Mr Loveday as an Executor and trying to recover the dissipated Estate.
The appointment of two Executors allows them to keep an eye on each other as well as spreading the workload. It is important that the person you appoint understands the task ahead of them and where possible that they confirm their agreement to their appointment as Executor whilst preparing your Will.
An Executor can be a Beneficiary, but they cannot be one of the Wills official witnesses. Appointing a Solicitor as Executor can protect the Estate. Although the Solicitor is entitled to charge for their services, should that Solicitor breach their duties or act negligently there is a better chance of recovering the value of the Estate. All Solicitors’ firms have to be insured and their accounts independently audited. Any misappropriation of assets by a Solicitor puts that individual at risk of disciplinary action.
Pinney Talfourd can assist in Will preparation and advice on the appointment of an Executor and can help to minimise any charges. If you would like further information on this, please contact our Private Client Department on 01708 229444 or email us using the form to the right.This article was written by Kerry Hull, Senior Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of May 2018.