Being named as an executor in a Will is a significant responsibility, but it is not uncommon to feel uncertain or even reluctant about taking on the role. Many people are unsure whether they must accept the appointment, or if they have the option to decline.
Understanding your rights and obligations as a named executor is crucial before making any decisions.
This article explains whether you can refuse to act as an executor, what is involved in stepping aside, and what the role entails should you choose to accept it. Whether you are considering your own position or supporting someone else, the following guidance will help clarify your options and the practical steps you may need to take.
What is an executor of a Will?
An executor is a person appointed by a will to administer the estate of the deceased. Their responsibilities include ensuring that the deceased's wishes are carried out, managing the estate's assets, paying any debts and taxes, and distributing the remaining assets to the beneficiaries.
How do you become executor of estate?
An individual becomes an executor by being named in the deceased's will. If there is no will, or if the named executor is unable or unwilling to serve, the court may appoint an administrator to perform similar duties.
What does an executor of a Will do?
In the simplest terms possible, in nearly all cases an executor will need to;
- Identify the deceased's liabilities and assets;
- Obtain payment of any debts due to the deceased;
- Gain control of those assets;
- Convert those assets into money (where appropriate);
- Maintain the assets safely, once collected;
- Pay the deceased's debts; and
- Ascertain the residuary estate and properly distribute the estate.
You must also keep beneficiaries informed, distribute the estate according to the Will, maintain accurate records, and act in good faith at all times. In addition to administering the estate in accordance with those steps, an executor owes duties to act with;
"such care and skill as is reasonable in the circumstances, having regard in particular to any special knowledge or experience that he has or holds himself out as having, and if he acts as trustee in the course of a business or profession, to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession".
If you encounter any complex issues, it is important to seek appropriate professional guidance.
Can you refuse to be an executor?
If you find yourself named as an executor of the Will of a friend or family member, you might wonder whether you have to accept the appointment, or whether in fact you can simply decide not to. There is no obligation on any person named as an executor in a Will to act as an executor. So you do not have to act if you do not want to.
It follows that an executor's duties only become active if a person seeks to act in that role, and the duties an executor owes to beneficiaries of the Will likewise do not apply unless and until an executor seeks to act.
How to decline being executor of a Will
You will need to liaise with any other named executors in the Will and explain your position. They may ask you to sign a document to formally confirm this. This is called 'renouncing' your position.
If you renounce your position, then any other named executors will be able to apply for a grant of probate in their own names without your involvement.
If there are no other executors named in the Will, it may be a good idea to contact the beneficiaries of the Will and/or family members of the deceased to explain you are not intending to act as executor. This will enable other interested parties to take legal advice and look to advance the administration of the deceased's estate themselves if they wish.
Can an executor be removed?
Yes, an executor can be removed if they fail to perform their duties properly. This can happen through a court order if beneficiaries or other interested parties can prove that the executor is not acting in the best interests of the estate.
What should an executor do if they need help?
If an executor needs help, they can seek assistance from professionals such as solicitors, accountants, or estate planners. These experts can provide guidance on legal, financial, and administrative matters related to the estate.
Can executors claim for costs and expenses from the Estate?
The general rule is that an executor is entitled to an indemnity from the estate for costs properly incurred in discharging the executor's duties. In other words, the estate should usually cover your costs.
However, situations often arise where one party argues that the costs incurred by the executor have not in fact been 'properly incurred'. That often occurs as part of court disputes.
When will an executor be able to claim court costs from the Estate?
Whilst the general rule - that an executor is entitled to an indemnity - still applies in court cases, those costs are only recoverable where they were 'properly incurred'. As a result, it is possible for a court to make an order requiring an executor to meet certain costs themselves, and not to recover them from the estate.
There are a list of questions a court must take consider when deciding whether costs were indeed "properly incurred". These include;
- Did the executor obtained directions from the court before bringing or defending the proceedings?
- Has the executor acted in the interests of the estate or for a benefit other than that of the estate, including their own?
- Has the executor acted unreasonably in bringing or defending the proceedings?
If therefore some form of dispute relating to the Will or estate in question is a prospect, a potential executor would do well to consider this risk at the onset, before agreeing to act.
We have considered the issue of costs further in a case update.
Conclusion and further reading
Executors play a vital role in ensuring that the deceased's wishes are honoured, debts and taxes are paid, and assets are distributed correctly. It is a position that requires diligence, organisation, and sometimes professional assistance to navigate complex legal and financial matters.
By being well-informed and prepared, executors can fulfil their duties effectively and honour the legacy of the deceased. If you are considering whether or not to accept an appointment as an executor, you may wish to consider reading some of these articles;
When might somebody challenge a Will?
What is the Inheritance Act 1975?
What is causing the increase in Will disputes?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
