Wills and Probate

Why do I need an Executor?

A well drafted will offers peace of mind and protects those you love – we’ve written about the reasons to make a will before in this blog https://www.donaldson-mcconnell.com/make-a-will/ . If you don’t give proper consideration to who will act as your executor, then you could be heading for trouble.

“It’s about a Will, and the trusts under a Will – or it was, once.

  It’s about nothing but Costs, now.

 We are always appearing, and disappearing, and swearing, and interrogating, and filing and cross-filing, and arguing, and sealing, and motioning, and referring, and reporting, and revolving about the Lord Chancellor and all his satellites and equitably waltzing ourselves off to dusty death, about Costs.

 That’s the great question.  All the rest, by some extraordinary means, has melted away.”

Charles Dickens, Bleak House

 

I’ve written hundreds of wills and dealt with all manner of estates during my career to date. As you’ll see from the quote above, disputes arising from a will, or because of a will, have been around since 1845.

If you have taken the time to make a will to carefully set out how you wish to deal with your assets it’s vital that you can be certain that these wishes will be implemented correctly and promptly by someone you trust implicitly: your Executor.

It would often be my experience that when clients attend to make their Will they may have given some thought as to their assets and who they to leave them but have not considered who to appoint as their Executor.

To understand the importance of the Executor it’s important to understand their role and duties:

  • pay the debts, funeral and testamentary expenses
  • collect in the assets
  • administer the estate in accordance with the terms of the Will
  • exercise of fiduciary discretion, such as the power of sale or appropriation
  • ensure that your funeral and burial arrangements are observed

Appointment of Executor

An Executor’s appointment provides you with an opportunity to choose individuals who you have confidence in to carry out these duties and who you trust to carry your wishes into effect.

By choosing someone who you know well you can expect them to take an informed decision in line with what you would have wanted.

What if I don’t appoint an Executor

Should you fail to appoint an executor (or your executor dies or cannot act and you don’t have a substitute executor appointed) then a grant of letters of administration will be required for the administration of the estate.

This Court application must explain why there is no executor and establish the priority of the person who is applying in accordance with the Non-Contentious Probate rules.

This will inevitably cause a delay in the administration of the estate and may also result in it being administered by someone who you would not have otherwise chosen to do so.

How many can I have?

There is no limit on the number of persons who can act as an executor at the same time but too many executors are unwieldy and it is rare that you should be appointing more than three.

The minimum is one and a sole executor may be sufficient in a modest, straightforward estate, especially when the executor is the surviving spouse who is also the sole or the main beneficiary.  You should however consider a substitute appointment n case the sole executor predeceases you or otherwise is unable or unwilling to act.

Generally, however, it may be worth considering the appointment of at least two executors.  This will allow you to appoint an individual in their own age bracket e.g. a sister or brother but also perhaps someone younger to share the burden or to proceed alone in the event of the death or incapacity of the older individual.

Who should I appoint?

Spouses and then adult children are the most common choices and, on the whole, work perfectly adequately. You should however be aware of any friction or dispute that might arise between family members who might be asked to perform a vital role which must be carried out during a very difficult time.

I have had the unfortunate experience on a few occasions where adult children have been appointed as executors with the estate having been left to them in equal shares (which on the face of it would appear very straightforward) only to discover that these children could or would not agree in relation to the administration of the estate on account of their own personal conflicts.

Therefore when parents suggest appointing their children as executors I will ask them to confirm that they would anticipate their children being able to work harmoniously together.  If this is not the case then I would suggest they would consider appointing alternative neutral executors such as other family members (of an appropriate age), friends, colleagues or professional advisors.

Solicitor as executor

When a client chooses not to appoint a family then quite often we as solicitors become the next in line.  The advantage to this appointment is that we are familiar with the nature of the work required and are able to have the appropriate paperwork prepared and lodged promptly. It is worth bearing in mind that a solicitor, or any other professional person, will be entitled to be paid for the work carried out in the administration of the estate whereas a lay person will entitled to have his proper and reasonable expenses reimbursed but nothing further.

Whilst I am content to act personally as executor as solicitor for clients personally in situations where I have known the client for a number of years, I would always recommend that you might instead consider appointing our firm to act as executor in order to avoid the necessity of having to update the Will in the event of my death or retirement.

 Conclusion

Your executor pays a vital role in ensuring that your final wishes are carried out correctly. You should carefully consider who you would wish to act, ensure that you have made alternative arrangements if your first choice(s) cannot or will not act and be certain that your executors can work together without dispute. It’s important that you discuss the role with your proposed executors before you appoint them and to be sure that you appoint people with the necessary qualities and experience. If you feel that you would prefer to appoint our firm to act as your executor then we can discuss these options with you during your appointment.

If you are interested in completing your will or discussing your options contact me at margaritas@donaldson-mcconnell.com or Lisa Mullen at lisam@donaldson-mcconnell.com

For more information about wills generally visit https://www.donaldson-mcconnell.com/services/wills-and-estates/

This blog is an extract from the lecture “Bleak House Revisited; Executor Disputes and the still ‘ruinous toils of Chancery’ in the 21st Century” delivered by Margarita Sloane and Sheena Grattan BL to the Bar Library of Northern Ireland on Friday 29 March 2019 as the first in a new series of Belfast lectures on Women in Law .
This blog is made available by DMC for information purposes is not intended to provide specific legal advice in relation to any particular circumstances. You should therefore not act upon this information without seeking advice from a qualified lawyer and obtaining advice specific to your query. Your use of this blog is at your own risk and we cannot guarantee that the blog will reflect the most current legal developments at the time of reading. DMC will therefore not be responsible for any errors or omissions in the content of this site or blog.

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