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Executors and Administrators

What are executors and administrators and what are their duties, responsibilities and liabilities?

When a valid will exists, a person dealing with the estate is called an executor. If a valid will does not exist then this person is called an administrator. Executors and administrators are both sometimes known as Personal Representatives.

What is probate?

Probate is the authority given by the court (in the UK this is the Probate Service) to a Personal Representative allowing them to administer the estate of a deceased person. This authority is given by issuing a Grant of Representation. In the case of an executor the Grant of Representation is called a Grant of Probate and in the case of an administrator it is called Letters of Administration.

How do I become an executor of a will?

You can only become an executor by being named as such in a valid will. Any number of executors can be named in a will but only a maximum of four can undertake probate duties. Normally it is possible to have just one (i.e.. sole) executor. However if one of the beneficiaries is a minor (under 18) or one of the beneficiaries has a life interest in any of the assets then two executors are required. If there is only one executor then the Court will usually appoint another personal representative who would only deal with these matters. If you are named as executor you have several options:

  • You can accept the position. You will legally own all the assets from the time the testator dies and will have the responsibility of discharging your duties with reasonable skill and care. You will not be able to take any of the assets into your possession nor dispose of them until the will has been "proven" and your position as executor is confirmed by a Grant of Probate (also known as a Grant of Representation). You can however act with authority in other matters. A Grant of Probate is sometimes not needed. See Applying for Probate.
  • You can renounce the position i.e.. refuse to do it. To do this you will need to sign a Deed of Renunciation and lodge it with the Probate Service.It is recommended that you take legal advice when doing this.
  • You can have Power Reserved (see below). This means that you are not going to do anything to help administer the estate but you reserve the right to do so in the future. You might use this when one of the executors lives out of the country, for instance.

Power reserved

Power reserved may often be helpful where next of kin are named as executor and they are struggling to cope with the grief of the bereavement. They may not wish to renounce their position as executor but may not feel able to deal with all of the work and papers associated with applying for probate. The remaining executors can apply for the grant of probate. Under these circumstances it is only their written authority which is required to deal with the sale of the estate's assets and the settlement of liabilities. This can be useful where it is difficult to obtain signatures from all of the executors and can streamline the post probate process. It is always worth referring to the fact that one or more of the executors has power reserved when sending off letters after probate to avoid the recipient returning the documents and requesting all executors to sign. The probate grant records the fact that power has been reserved to other executors. By reserving power the executor that has not applied for probate has the right to prove the will at a later stage if they wish. This is termed a grant of double probate and the application is made to the Probate Registry. Under these circumstances documents will then need to be signed by all the executors.

If a solicitor is named as an executor and you do not want to use their services they would be advised to take Power Reserved. This means that they can act (and get their fees) if something prevents you from undertaking your duties. You do not have to sign the Probate Application forms but they will record that you are taking Power Reserved. An executor with Power Reserved can get a Grant of Probate from the Probate Service at any time. Once you have renounced your executorship you cannot change your mind. If you intend to renounce the position it is important that you do nothing which could be construed as behaving like an executor (for instance writing a letter stating "I am the executor of ..."). In theory you have then accepted the role. An executor is responsible for administering the estate for the rest of their life. In theory it is possible for something to come to light many years after you thought your duties were finished which you will then be obliged to deal with.

You should not undertake the role of executor without knowing the consequences. Importantly, you should also refer to Executor Liabilities If you intend to renounce the position you should take care to do so before you do anything that could be interpreted as executor behaviour. For instance, paying a debt could be construed as having accepted the role and you cannot then renounce it. This is known as “intermeddling”. Arranging the funeral is not considered intermeddling.

If the executor is not acting correctly

The next of kin or the beneficiaries should write to the executor and ask them to produce an account of the administration of the estate. If the response is not satisfactory or there is no response at all then they can apply to the Court to have the executor removed or replaced. The case to the Court must be robust in order for it to be considered. An executor will have to cease to act if they are convicted of a crime and sent to prison or if they become mentally or physically incapable of acting. Legal advice should be taken in any action to have an executor removed from their position.

If there is a valid will but no executors

If a valid will exists the only people who can become executors and apply for a Grant of Probate are people named as executors in the will. If there are no executors named, or if they all renounce the position, or they have all died or are incapable of carrying out the role then the will still stands but its wishes must be carried out by an administrator, rather than an executor. This would normally be the beneficiary entitled to the residue of the estate and the process is called Administration with Will Annexed. One exception to this is if a sole executor is incapable of carrying out the role due to mental incapacity. If an enduring power of attorney exists then the attorney can act on the executor's behalf and also apply for Probate unless the Court of Protection has already appointed an executor. You may wish to consult a solicitor in this instance.

If there is no will

If there is no will, or the will is invalid then Letters of Administration (also known as a Grant of Representation) will probably be needed to give you the authority to deal with the estate. Letters of Administration will not be needed in some circumstances. See Applying for Probate. Unlike an executor, a personal representative who intends to apply for a Grant of Administration only owns the estate once the Grant has been issued and has no authority to act until then. A potential administrator should not, for example, advertise a property for sale before the Grant has been issued.

Who can become an Administrator?

In order of priority:

  • The spouse or civil partner of the deceased
  • A child of the deceased
  • A grandchild of the deceased
  • A parent of the deceased
  • A brother or sister of the deceased
  • A nephew or niece of the deceased
  • Another relative of the deceased

These people are the ones capable of inheriting under the laws of intestacy and if there are none of these then the estate will pass to the Crown. Most estates will be administered by the Treasury Solicitor, but deaths in the Duchies of Cornwall and Lancaster pass to those Duchies and are dealt with by Farrer and Co.

What are the duties of a Personal Representative?

Stating it as simply as possible, the duties of an executor or an administrator are:

  • To safeguard and collect assets
  • Pay the debts of the deceased
  • Distribute the remainder of the estate to the beneficiaries

In order to perform these duties there will be many tasks to be done before and after obtaining a Grant of Probate and these tasks are addressed in other sections of this website.

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