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An executor is an individual you have appointed in your will to carry out the terms of your will and sort out your estate following your death including distributing your estate and paying any debts you may have left and if necessary obtaining a Grant of Probate for the estate.
An executor obtains their authority to act simply from being named as an executor in the will, the Grant of probate subsequently confirms that authority.
An executor should be someone you trust and can rely on and who is willing, capable and has the time to take on what can be an onerous responsibility. A significant amount of work can be involved in dealing with the administration of an estate.
Prior to naming an executor in your will you should first check with that person to ensure they are willing to act in that capacity. The fact that you may have named someone in your will as your executor does not mean they are obliged to accept that appointment. It is not uncommon for executors who had no prior knowledge of their appointment to renounce their role as an executor, which may then leave the estate without an executor.
Ideally you should name more than one executor to minimize the risk of an executor being unwilling or unable to act resulting in the estate having no executors.
Executors must be able to work together without personal animosity otherwise there is a very real risk of the estate administration grinding to a halt and litigation ensuing.
Whilst there is no limit on the number of executors you can appoint in your will s.114 (1) of the Senior Courts Act 1981 limits the number of people who can apply for a Grant of Probate to a maximum of four.
If appointing multiple executors they can be appointed jointly, where they have to act as a group, or severally which means they can make decisions independently of each other. If appointed severally then a decision made by one executor will bind the other executors.
You may decide when weighing up the factors to appoint a professional executor in your will as they will often have specialist knowledge which will assist with the administration of an estate. They are also in general a neutral party and their appointment may reduce the risk of conflict occurring between the beneficiaries of your will.
A professional executor will have the right to charge for the work they undertake and these costs will be paid out of the estate.
On many occasions, lay executors will instruct probate solicitors to deal with the bulk of the administration of an estate.
If an executor decides that they are unable or unwilling to act then provided they have not intermeddled in the administration of the estate they can renounce their role. Intermeddling happens when an individual hold themselves out as an executor and/or handles the Deceased’s assets.
If they have intermeddled in the administration of the estate and then decide that they do not want to deal with the administration any further they can only be removed by an order of the Court.
An executor should be over the age of 18, if an executor is under the age of 18 they cannot apply for a Grant of Probate until they reach the age of 18.
They must have the necessary mental capacity to act as set out within the Mental Capacity Act 2005.
The appointment of an executor should be clearly set out in the will and should minimize the risk of any uncertainty arising as to the identity of the individual appointed and how they should be acting. If the appointment is unclear there is a risk of that appointment being found to be void.
You should ensure that you keep your will up to date to take account of a situation where an executor you appointed is now unable or unwilling to act as an executor.
An individual can witness a will in which they are appointed as an executor provided neither they, their spouse or civil partner are named as beneficiaries in that will.
If you do have your will witnessed by one of your executors and either they, their spouse or civil partner are named as beneficiaries in that Will then any gifts that are left to those individuals in the Will are void under s.15 of the Wills Act 1837.
Yes, it is very common and entirely acceptable for executors to also be beneficiaries of your will.
Choosing the right executors to administer your estate is incredibly important as the appointment of the wrong executor can result in all sorts of problems arising.
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