Being named as an executor in a deceased’s will represents an important responsibility, but is not a role that everyone is happy to take on. Wills, Trusts and Probate legal specialists, Shelley Collingbourne and Hannah Davis in our Private Client team, consider some of the reasons why an executor might not want to accept the role, and the legal options available in this situation.
What is an executor?
An executor is named under the terms of a will and is the person who is legally responsible for dealing with the deceased’s affairs.
An executor’s responsibilities are clearly stated in law: an executor has been appointed by the deceased to ensure that the terms of their will are carried out, and as such, the executor must manage the estate administration process, including dealing with the deceased’s assets and liabilities.
This begins with ascertaining the estate’s value, taking into account any assets owned by the deceased and all debts owed by them. This will allow them to complete forms enabling them to deal with any inheritance tax liability, where appropriate, and to apply for a grant of probate. When received, the grant itself represents the legal authority to administer the estate.
Other duties include arranging to sell assets owned by the deceased, including their property, shares and investments, collecting in all other estate funds, and settling all estate liabilities. An executor must also report to HMRC and pay any other taxes due, such as capital gains tax and income tax. Finally, the executor must then distribute the estate in accordance with the deceased’s will.
Why might an executor not want to act?
Being named as an executor in a will is an important responsibility and can be a demanding role in terms of time and work involved. Indeed, if an executor fails to carry out their duties effectively or accurately, they can face legal disputes or other challenges, and some issues can result in personal liability.
Often over-looked is the emotional toll that taking on this role can have on an executor. They may feel unable to handle the responsibilities of managing an estate administration or are simply unwilling to do so. Having just lost a loved one, an executor might not be in the right frame of mind to deal with the practicalities required or may not feel capable of managing a complex estate. Frequently, the deceased may not have informed the executor that they had appointed them in that role, and the executor may simply not be able to act.
What are the options if executors don’t want to act?
If the executor named in a will doesn’t want to act, or feels they cannot handle the responsibility, they have a number of options available to them. These are:
Deed of Renunciation
An executor can permanently step away from the role by renouncing (giving up) their authority to act.
This option is only available when an executor has not taken any steps in relation to administering the estate, so as to not have ‘intermeddled; with the estate. Actions constituting intermeddling are not always clear cut so these will need to be reviewed before a renunciation is signed.
Renouncing requires the executor to complete a deed of renunciation, usually by using the standard PA15 form. Once the deed of renunciation has been signed and witnessed, they will no longer have authority to act as an executor. This will enable someone else, such as a co-executor, substitute executor, or a residuary beneficiary of the will, to deal with the administration instead.
An executor must have mental capacity to renounce their role.
Power reserved
If a named executor does not want to permanently step away from their role, but simply wants to step back, they can elect to have power reserved to them.
This means that one of the other appointed executors can apply for the grant of probate instead.
For the executor who elects to have power reserved, this means that they do not take a day-to-day role in administering the estate but can choose to act at a later date by applying to the probate registry for a ‘double grant’ to be issued. The double grant then works in tandem with the first grant of probate which has been issued.
In some cases, there is need to have the first grant issued to be revoked. Sometimes this is because the executor appointed under the first grant of probate has lost capacity before finalising the administration of the estate. The executor to whom power was reserved could step back into the role and apply for a new grant of probate to be issued, thereby allowing them to finalise the administration of the estate.
Power of Attorney
If there is a sole executor appointed and they do not want to act, but they know someone who is willing to deal with the administration, then the executor can grant a power of attorney in favour of the person who is willing to act.
The power of attorney will only give the attorney authority to deal with the administration of the estate, and is issued by the probate registry “for the use and benefit” of the executor. This power is limited to the administration of the estate in isolation and does not give the attorney power to deal with other matters, such as the executor’s own financial affairs.
An executor must have sufficient mental capacity to grant the power of attorney.
Instruct a solicitor
If an executor wants to act but needs a helping hand with the administration of the estate, they can instruct a solicitor to deal with matters on their behalf. The executor remains responsible for the administration of the estate, but the day-to-day administration can be carried out by the solicitor on their behalf.
A version of this article was first published in the June issue of The Offical Gazette.
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