If you have been named as the executor of someone’s Will, you may decide not to take on the role. If you do decide to act as an executor, you have certain legal responsibilities and duties. In this article, we answer some common questions. If you don’t find the answer you need, please get in touch.
How quickly do I have to register a death?
The death should be registered as soon as possible. This is not the executor’s responsibility (unless there is no one else who can do it) but you should ensure that you obtain the death certificate.
You may be asked how many copies of the death certificate you would like. Having at least 3 or 4 copies can make the process of dealing with several institutions (banks and building societies, utility companies) possible at the same time. The Tell Us Once service can help with some of your administrative workload.
What information will I need to act as an executor?
You will need the following information:
- date of birth
- National Insurance number
- driving licence number
- vehicle registration number
- passport number
- the date of death
- details of any benefits or entitlements they were getting – for example State Pension
- details of any local council services they were getting – for example Blue Badge
- name, address, telephone number, and the National Insurance number or date of birth of any surviving spouse or civil partner
- name and address of their next of kin – if there is no surviving spouse or civil partner or their spouse or civil partner is not able to deal with their affairs
- name, address, and contact details of the person or company dealing with their estate (property, belongings, and money), known as their ‘executor’ or ‘administrator’
- details of any public sector or armed forces pension schemes they were getting or paying in to
Who should arrange the funeral?
The funeral arrangements are not an official responsibility of an executor unless you are a member of the deceased’s family or the close relatives ask you to deal with them. You should check the Will to see if the deceased expressed a preference about their funeral, although if the choice they made is impossible or impractical you are not bound to it.
The Will may contain a reference to a funeral plan, If the funeral was not prepaid or covered by special insurance, the cost can be met from the deceased’s assets. The deceased’s bank or building society will arrange to pay the bill immediately provided there is enough money in their account.
Is a Grant of Probate needed?
Some assets may be dealt with without the need for a Grant of Probate. If the deceased had jointly owned property or accounts, these can usually be transferred to the surviving joint owner by producing the death certificate to the relevant organisation. If the deceased had life policies or death in service benefits these will usually be paid to the people named on the policies or nominated to the trustees on production of the death certificate. A life policy that benefitted the deceased, or names a beneficiary who has died, will usually be paid to the deceased’s estate and the Executor may need to produce a Grant of Probate.
Small bank or building society balances, National Savings certificates and Premium Bonds may be cashed in without a Grant of Probate – it’s best to check with each organisation.
How do I find a Will?
The first place to look to find the location of a deceased person’s Will is with their private papers. If you find a copy of a Will, it’s likely the original has been stored securely with the firm that drafted it, with National Will Safe, or with the Probate Registry. National Will Safe provides every testator with plastic cards to give to their executors – these are printed with the details of storage and a telephone number to call to retrieve the original Will. The Probate Registry supplies a paper receipt for storage.
You will need the original Will, even if you do not apply for a Grant of Probate. If a legal firm, bank or storage company is holding the Will, you will need to provide an original death certificate to obtain the Will. If there’s more than one Executor, the authority of all the Executors will be needed to release the Will to one of you.
If you think the deceased made a Will but you do not know where it is, or cannot find the original, you must make enquiries. You can search the national wills database, called Certainty.
An Executor can be held personally liable if assets in an estate are distributed before all debts are paid. This can be avoided by placing statutory notices (the law determines how and where) giving a deadline for creditors to contact the executor to make a claim. Seek legal guidance if you cannot find a Will but you suspect the deceased made one at some time in their life.
Do I need to get the deceased’s assets valued?
The executor is responsible for dealing with anything and everything owned by the deceased at the date of death. You will need to make sure that assets are kept safely for the beneficiaries who are entitled to them. If the deceased left a house that is now empty you will need to contact the insurers to notify them of the death and to ensure that insurance for the building and the contents are continued. Again, the cost of the insurance can be taken from the deceased’s estate.
You will need to find out exactly what property and money the deceased had when they died, along with any debts they may have owed. If the total comes to more than £325,000.00, you will need to complete Inheritance Tax forms and it is likely that the HM Revenue and Customs will want formal valuations of any land or property, personal belongings such as jewellery and furniture, and stocks and shares. The cost of the valuations will be an expense of the estate. If the assets are worth less than £325,000 you may not need formal valuations, although you should bear in mind that the Probate Registry will need some indication of the value of the estate for their own records. Beneficiaries could ask you to obtain formal valuations if there is a dispute.
Who pays any debts?
The executor is responsible for making sure that outstanding debts left by the deceased are paid. This must be done before any money is paid to beneficiaries mentioned in the Will. Don’t forget to find out about credit cards and the utility bills: gas, electricity, council tax, water, broadband, and telephone. The deceased may also owe money to the Benefits Agency if state benefits were claimed; a pension provider or employer, or the Inland Revenue.
What if there is not enough money to pay the bills?
If there is not enough money in the estate to pay all the debts (an insolvent estate), the executor will not be held personally liable, but you should be prepared to show that there is insufficient money available. The funeral and testamentary expenses are the first bills that should be paid. All other debts take second place to these. If there is enough money to pay debts but not quite enough to pay the gifts mentioned in the Will there is a specific procedure that must be followed.
The debts of an individual are not usually inherited by their family if they are in the sole name of the deceased, but there are two main exceptions to this:
- A third party guarantee on one of the deceased’s loans would make that third party liable for the total remaining debt
- Money that has been ‘gifted’ by the deceased up to seven years prior to their death could be viewed as an attempt to avoid paying creditors
For jointly owned property, responsibility for mortgage repayments and joint utility accounts revert to the joint owner who must take on the full payment amounts. A charge may be placed against property held in joint names.
This is the order of priority for paying creditors from an insolvent estate:
- Secured creditors
- Funeral expenses
- Testamentary expenses
- Preferential creditors
- Unsecured creditors
- Interest due on unsecured loans
- Deferred debts, for example between members of the family
What is a Grant of Probate?
If the deceased owned assets worth more than £5,000 it is likely that a Grant of Probate will be necessary. A Grant of Probate is the document that proves that the Will is valid and that the executor named on the Grant is entitled to deal with the deceased’s property and distribute it as set out in the Will.
The executor will need to show the Grant or an official copy of it to close down bank accounts, authorise the transfer or sale of shares and other investments, and sell land or property. The Grant is obtained from the Probate Registry (or a District Office) and the Executor will have to swear an oath confirming their duties and the value of the estate. A fee will be payable. A legal professional can obtain the Grant for you, or you can apply in person. In either case, you will need to produce the original Will and the death certificate.
How quickly do I have to act as an executor?
Having collected in all the assets and dealt with all debts, including income tax, capital gains tax and inheritance tax, the executor may distribute the estate according to the Will. The executor is not required to distribute any assets within one year of the date of the Grant of Probate although many estates are dealt with more quickly. If distribution takes place within six months of the date of the Grant, the executor could be held personally liable if the Will is then challenged – perhaps by a beneficiary assumed to be dead, or by someone who feels they should have been provided for by the deceased.
What records does an executor have to keep?
The executor has a duty to the beneficiaries of the Will and should be prepared to justify how they have dealt with the estate. Keeping accurate accounts is important. The accounts will include any legal fees, Probate Registry fees, estate agents fees for the sale of a house, and the executor’s personal expenses such as postage and telephone calls. Unless the Will specifically allows it (this means it contains a charging clause) or unless the beneficiaries agree to it, the executor cannot claim payment for their time and effort.
What happens if there are young children named in the Will?
Wills often include gifts to children and may state that a gift will not take effect until a certain age is reached. In these cases, the trustees (often the same people as the executors) will usually be charged to hold the gift on trust until the child reaches 18 or the age mentioned in the gift. The trustee will have further duties, powers, and legal requirements until the trust is ended. The Will may include these specifically and more are imposed by law. If you are appointed as a trustee and there are minor beneficiaries named in the Will, seek legal guidance. If a trustee acts or fails to act, in breach of these duties, the beneficiaries of the trust may be able to sue them personally. This is a complicated area of law and legal advice should be obtained if a Will creates a trust.
Is it possible to change a Will once someone has died?
It is possible to vary a Will using a Deed of Variation. This may be for tax purposes, although it can be done for other reasons and a legal professional will need to be involved. All the beneficiaries affected would need to agree to the Deed of Variation and a court order would be needed if any affected beneficiaries are minors or lack mental capacity. If the estate is taxable, the Variation must be registered with the Inland Revenue. Seek legal advice before attempting to do anything that alters the terms of the Will. A valuation for tax purposes must be made two years from the date of death.
How do I know if the Will is valid?
If the deceased did not make adequate provision in their Will for close family members, or if there is any doubt over the validity of the Will, it is possible that the Will may be challenged or a claim under the Inheritance (Provision for Family and Dependants) Act 1975 may be made. Legal advice should be obtained. The Executor’s legal expenses can usually be deducted from the assets in the estate.
The legal requirements for a Will to be valid are set out in the Wills Act 1837. For a will to be valid:
- it must be in writing, signed by the person making the Will (called a testator or testatrix), and witnessed by two people
- The testator must have the mental capacity to make the Will and understand the effect it will have at the time of making the Will
- The testator must have made the Will voluntarily and without pressure from anyone else.
- The beginning of the Will should state that it revokes all others.
What happens if there is no Will?
Where a person dies without a Will, or the Will is invalid, they die intestate. There are legal rules that dictate who can apply for a Grant. Where there is no valid Will, the Grant is known as a Grant of Letters of Administration. The person dealing with the estate is called an administrator or personal representative. The law also dictates who benefits from the deceased’s estate. You can see a visual representation of these rules in our blog post: What happens if you die without a Will? The duties are very similar to those of executors.
- Beneficiary – a person who benefits from a gift in a Will or from a trust.
- Capital Gains Tax – a tax paid when capital assets (eg, shares, houses, land, unit trusts) are disposed of. Capital Gains Tax may be payable on assets that are sold during the administration of a deceased’s estate.
- Deed of Variation – a legal instrument agreed by beneficiaries that changes the distribution of the estate.
- Estate – the money, land, investments, personal belongings, owned by a person when they die.
- Executor – a person named in a Will to carry out the instructions in the Will for distribution of the estate.
- Grant of Probate – the document giving authority to a named executor to collect the estate and distribute it as set out in the Will.
- Inheritance Tax – The tax payable on a personal estate valued at more than £325,000. Inheritance tax forms must be completed for any estate with a gross value of more than £325,000. The Inheritance tax rate is currently 40% (April 2021).
- Intestacy – dying without a Will.
- Testator/Testatrix – a person making a Will.
- Trustee – a person named in a Will or other Trust document to hold money or assets for a specified period on behalf of beneficiaries. Executors may also be appointed as trustees in Wills especially where money is to be held on behalf of children who are too young to inherit money directly, or where a trust exists to protect a property or other assets.