I recently found myself in the position of giving instruction for my first will having jumped on the first rung of the property ladder. Who was I going to appoint as the executor out of my trusted inner circle of family and friends to deal with my estate, if any of them? It’s a tricky decision, and for me a dark and unsettling prospect having only just bought my first property and here I was thinking about who should deal with my assets once I’ve passed away.
An executor has the role of ensuring the last wishes contained within someone’s will are granted in relation to the disposition of their property. In a nutshell, they are responsible for making sure that any debts held by the deceased are satisfied and that the remainder of the estate, known as the residue, is distributed in line with the wishes of their will.
Making or amending a will is an often overlooked aspect when purchasing a property or following a major life event, such as getting married or divorced.
So what are the practical considerations?
The vast majority of people will chose a family member, for example a spouse/civil partner or a sibling. Others opt for a friend and some consider a professional executor, such as their solicitor or an accountant. It is also possible to appoint a beneficiary of your will to act as an executor.
An executor’s role is fairly onerous and you may want to consider the following factors when deciding who to appoint:
- Willingness – you should always where possible discuss the appointment with the person in advance of naming them to ensure they agree to being appointed.
- Capability – are they mentally and physically able to take on the role? Do they have the correct attitude?
- Availability – depending on its size and complexity, administering an estate can take on average 9 months, so the executor ideally needs to be available to deal with any matters that arise.
- Any conflicts of interest.
With conflicts of interest, these can occur when appointing family or friends to act (known as lay executors) and you have contentious wishes in your will. If you feel they may not carry out your wishes in line with your instructions or there may be a dispute, you may want to consider a professional appointment, or have a professional executor acting in a joint capacity alongside a lay executor. The benefit of this lies with the fact that a professional executor is an impartial party, removed from beneficiaries of the will. They can provide the lay executor with support and guidance through the administration of the estate, or the role can be split so that the lay executor deals with the personal aspects of the administration process and the professional executor deals with the legal and administrative matters. Their experience of the role is a major factor for many individuals. It is possible to appoint a firm of solicitors or a trust corporation to act as executor.
When considering appointing a professional executor, you should check their fees for acting on your behalf in advance of finalising your will. It is worth noting as well that lay executors cannot claim remuneration for acting, however they can claim expenses they have incurred from the estate, such as the cost of obtaining copies of the death certificate or postage fees.
Many people opt to appoint one executor believing that it makes the administration of the estate easier when this isn’t always the case. It is worth looking at appointing more than one executor when drafting your will. The downfall of appointing a sole executor is that should that person pass away without having administered the estate, there is no one specified in the will to take over the role. This runs the risk of someone you do not want, or know, administering your estate. Therefore it is prudent to consider the appointment or two or more executors, especially if you have a large or complex estate. It is also possible to name one executor in your will whilst also naming a substitute executor, should the primary executor be unable to fulfil their duties.