In today’s blog we look at the role of the executor to a deceased person’s estate and what to do if you don’t want to act.
What Is an Executor?
An executor (or executrix, the feminised version) of an estate is an individual appointed to administer the estate of a deceased person. The executor’s main duty is to carry out the instructions to manage the affairs and wishes of the deceased person’s estate. The executor is appointed either by the testator of the will (the individual who makes the will) or by a court, in cases wherein there was no prior appointment.
How Executors Work
The executor is responsible for making sure all assets in the will are accounted for, along with transferring these assets to the correct parties. Assets can include financial holdings, such as stocks, shares, bonds or money market investments, property and chattels.
The executor also needs to ensure that all the debts of the deceased are paid off, including any taxes, loans or mortgages. The executor is legally obliged to meet the wishes of the deceased and act in the interest of the deceased.
Some people agree to be an executor thinking that it will be years before they have to do any work. However, doing the job properly means going to work immediately.
To be prepared, you should:
- Make sure the testator is keeping a list of assets and debts, including bank accounts, investment accounts, insurance policies, real estate, and so on.
- Know where the original will and the asset list is being held and how to access them.
- Know the names and contact details of solicitors named by the testator, and what their function is.
- Discuss the testator’s wishes as far as a funeral or memorial service, including instructions for burial or cremation.
- Discuss the will with the testator in order to minimize problems in the future.
- Have a copy of all these documents.
Again, it is important that you have the time to do gather this information as soon as possible after you’ve agreed to be the executor.
What if you don’t want to act?
The role of an executor is not always easy. As well as the legal forms that need to be completed, there may be complexities in administering the estate once the appropriate grant of probate or letters of administration have been received. There may be taxes to pay. For that reason, many people seek the assistance of a lawyer to help them in their role. A good solicitor will assist in applying for probate and in the administration as well as preparing final accounts and dealing with the distribution of the estate along with paying any taxes.
But that doesn’t mean that you have to act. If you are uncomfortable in acting there are three options that are open to you:
- Renouncing the Appointment
In essence this is the process of withdrawing your consent to act. To renounce executorship, you will need to have a deed of renunciation drafted by a solicitor. This document must be signed and lodged with the Probate Registry. Once it has been lodged it is final, and can only be retracted if you have permission from a District Judge or Registrar. In order to renounce however you must not have “intermeddled” in the estate (more on that below).
- Having power reserved if there is another executor who can act instead
When a will names more than one executor, not all of the executors have to act if they don’t want to. If one executor doesn’t want to act, they can have power reserved to them, which means that they won’t need to take an active role in the administration of the estate. The other executors will then take on all of the probate responsibilities. The major difference to renouncing is that having power reserved is easily reversed if someone changes their mind. It is also possible to have power reserved if the executor has intermeddled in the estate.
- Appointing an Attorney to Act on the Executor’s Behalf
An executor named in a will can also decide to appoint someone as their “attorney” to act on their behalf and to administer the Estate for them. This is done by way of a Limited Power of Attorney, which would state that the attorney is only able to act in relation to administering the Estate, and not in relation to the executor’s own personal affairs. When someone is appointed using a Power of Attorney, they essentially step into the shoes of the executor and have the same powers that the Executor would have themselves. An executor can appoint an attorney to act in their place even if they have “intermeddled” in the estate, so as long as the grant of probate has not been applied for. An attorney can be a friend or family member or an executor may wish to instruct a professional person or organisation, such a solicitor, to act as their attorney.
Beware of Intermeddling
If you are considering stepping down as an executor, you need to be clear that you have not intermeddled in the estate before you decide which course of action to take. Intermeddling means that you have handled the deceased person’s assets or held yourself out in the role of an executor. This could be collecting an asset or paying a debt. It could also mean you have dealt with handing over an asset to a beneficiary or have been running the deceased’s business after their death.
Certain acts, however, are not regarded as intermeddling, such as arranging the funeral, securing goods or moving assets to a place of safety. By preserving the estate assets initially, you are not considered to be assuming the role of executor and are therefore not intermeddling.
If, on the other hand, you have started to distribute assets or paid debts from the estate you will almost certainly intermeddled and the option of renouncing executorship will no longer be open to you.
If you have been appointed an executor and need assistance with the probate procedure or alternative are uncomfortable in taking on the responsibility of the role, why not contact one of Alexander JLO’s expert probate team and see what we can do for you?