Who Should I Name as Executor in My Will?
24 April 2017
There are many important decisions to make when making a Will. One of these is deciding who you would like to name as your Executor or Executors.
An Executor is a person you want to have the legal responsibility to carry out the terms of your Will and administer your Estate after your death. In England & Wales an Executor must be over 18 years old at the time of your death and must have the mental capability to do the job.
You can name as many Executors as you like in your Will, and you can also choose substitute Executors in case your initial choices are unable to act. However, the maximum number of people that can act as Executor at any one time is four. An Executor can be a beneficiary named in your Will.
The duties of an Executor are extensive. These can include things like registering your death and obtaining death certificates, organising your funeral, notifying organisations that you’ve died, obtaining valuations of your assets and liabilities, dealing with any outstanding tax returns, reporting the value of the Estate to HM Revenue & Customs (HMRC), obtaining a Grant of Probate, arranging the payment of Inheritance Tax (if any), paying any debts and expenses, and distributing the Estate to the beneficiaries named in the Will.
In addition to the general Executor duties listed above, an Executor needs to keep records that account for every penny in your Estate, making it clear how each beneficiary’s share of the Estate has been calculated. If the Executor gets this wrong then they may be personally liable and need to cover the cost out of their own pocket. Furthermore, in the event of a dispute or claim against the Estate, the Executor could be drawn into legal action to defend the terms of the Will.
The point is that the role of an Executor is a serious one which carries a lot of responsibility. When choosing your Executor or Executors you need to bear this in mind.
Should I Choose a Professional Executor?
It really does depend on your circumstances. If you appointed a lay person to be your Executor then, upon your death, they can decide:
- Whether or not to act as your Executor; and
- If they decide to act, whether they want to instruct a professional legal service to deal with it on their behalf
A common approach we see is, where someone is leaving their entire Estate to one person, such as a spouse or only child, then they appoint that beneficiary to be the Executor of the Estate as well. This makes sense because it puts the beneficiary ‘in the driving seat’ to decide whether they want to deal with matters themselves, or whether they’d prefer to instruct a legal services provider to do it on their behalf.
As you would imagine, when professionals are instructed to act as Executor then there is a cost for this service which is normally payable out of the Estate itself. Therefore if the Executor is also the sole beneficiary they can decide whether to incur the costs, which ultimately comes out of the inheritance they receive.
In saying that, there are some very good reasons to appoint professional Executor from the outset, particularly if you want someone neutral (i.e. not a beneficiary) to administer your Estate. You may feel that if you appointed family members to deal with things they would argue and disagree. When this occurs it’s usually to the detriment of the Estate as the arguments lead to delays, and possibly significant legal fees if the Executors start seeking separate legal advice.
If you’re considering appointing a professional service as your Executors, it’s important to understand how they charge for dealing with your Estate. Please note that I said “how they charge” and not “how much they charge”. We commonly get asked the question “how much will it cost if I appoint Co-op Legal Services as Executors of my Estate?” The difficulty with this question is that we don’t know how much work is going to be involved when dealing with your Estate when you pass away in the future. If we don’t know how much work is involved, we aren’t able to confirm the cost.
For example, today you could have a modest Estate comprising of just a house and a bank account, but at the point you die, your Estate could have changed significantly both in value and complexity.
Given this uncertain future you’ll be hard pressed to find any reputable legal services provider committing to a figure when there is no certainty as to the amount of work involved. This is why it’s important to understand how a legal services provider charges to ensure that it’s fair and reasonable.
This is particularly important when writing your Will. We have seen examples when a person has been lured in by the offer of a cheap Will writing service, but the terms and conditions of the service mean the company is appointed as Executor and they charge a fee based on a significant percentage value of the Estate. The old saying that ‘if it looks too good to be true, then it probably is’ is worth remembering. If you have already used a cheap Will writing service then it’s best that you check the terms carefully to ensure that you have not been caught out by this unethical practice.
Co-op Legal Services offers both fixed fee Will writing and fixed fee Probate, so you have peace of mind that your affairs are dealt with properly and ethically by a name you know and can trust.