Lance Ranger, Attendus Company AG director, is a practising solicitor who specialises in real estate planning, insurance law, trust law and business law. This article will explore the basics of wills and probate and especially the role of executors.
An executor is responsible for carrying out the instructions contained in the last will (or ‘testament’) of a deceased person. The person making the will, known as the ‘testator’, can choose whoever they wish (with full legal capacity) to fulfil the role of executor, but there are several important factors to consider.
Serving as executor can be a complicated and demanding task, placing a significant legal burden on the executor’s shoulders to ensure that the testator’s instructions are followed to the letter. With a sizeable estate, this role may require a great deal of work and responsibility.
For example, where the sale of the deceased’s real estate is concerned, the executor will have the final say on whether to accept offers from prospective purchasers. However, rather than simply accepting a low offer so that the estate can be wound up quickly, they have a responsibility to those who inherit the proceeds (known as ‘beneficiaries’) to ensure they receive the most money from the estate. The executor is also responsible for ensuring that all estate liabilities are met, paying income tax, capital gains tax and inheritance tax liabilities where appropriate.
Partners and/or children of the testator are common choices for the role of executor. Each executor should ideally be at least 18 years of age at the time of applying for ‘probate’. This is an official document that confers upon the executor the right to deal with the deceased’s affairs. Beneficiaries under a will can, and often do, also serve as executors.
It is sensible for the testator to choose at least two executors to cover the scenario where one of them dies or decides to ‘renounce probate’, meaning that they relinquish the role of executor. If one executor dies, the surviving executor can generally administer the estate. It is also possible for the testator to name replacement executors in a will, should one of the executors be unwilling or unable to act.
In choosing an executor, there are several important aspects to consider. Not everyone will be willing to fulfil this role, so it is crucial to think about the matter carefully. It is sensible to discuss the matter with preferred candidates prior to the will’s creation. Some estates can be incredibly complex, and some people may not be able or willing to take on the responsibility. In addition, broaching the matter with the candidate forewarns them so that it does not come as a surprise later on.
An executor is responsible for liquidating and distributing the personal assets of the testator, many of which are likely to hold significant emotional and financial value. They must therefore be the ‘right’ person to do this. Executors are legally required to act in the best interest of the estate, setting aside their personal interest. Although executors are often also beneficiaries under a will, they need not be. Due to the amount of responsibility involved in the role, it is crucial to appoint trustworthy and competent executors who are capable of undertaking the duty.
An estate may take anywhere up to a year to complete and sometimes more. Administering an estate can be a very complicated task. Obtaining probate is not always necessary, but even if it is not needed there are still a variety of other tasks to complete, including registering the death, informing creditors and debtors, and organising and paying for the funeral. If the estate is particularly complex, then liquidating and distributing the assets can be an extremely time-intensive process. It is therefore crucial for the testator to ensure that they choose someone who has sufficient available time to fulfil the role.
Where an estate is particularly complex – for example if there are foreign assets to locate, properties to sell or inheritance tax to pay – some testators may opt to appoint a specialist probate solicitor, either as executor or as legal advisor to the executor(s). Probate solicitors benefit from specialist knowledge and extensive professional contacts, enabling them to administer the estate as quickly and smoothly as possible. Appointing a professional can also help to reduce the scope for conflict between family members who may have different views as to the best way forward.
Sometimes, after making a will, it becomes apparent that the executor will not be able to act. They may have suffered an illness or a decline in mental capacity, or perhaps they have died before the testator. In such circumstances, it is crucial to update the will to reflect any change in circumstances. Where executors are unable or unwilling to act, then someone (often a beneficiary or their representative) may apply to be appointed as ‘administrator’ of the estate.
In all cases, it may be helpful for professional advice to be sought by the testator at the time of preparing a will so as to ensure that all formalities are adhered to in preparing its terms and appointing the best person or persons to act as executor.
