What is an executor?
An executor is someone who carries out the instructions left in a deceased’s will and does not have to be a family member, however, that is usually the case. Spouses often appoint each other, and grown-up children are a common choice. It all depends on who the person believes would be most trustworthy and capable.
Although executors don’t need to know the contents of the will, it is sensible to let them know of their role beforehand, just in case they have any strong objections.
Should a person wish to appoint two executors, they need to be sure that they will be able to work together without issue to ensure the estate is administered efficiently.
Appointing a solicitor as an executor
A solicitor doesn’t need to be appointed as an executor, but it can be a wise move if it is likely that the administration process will be a complex one. This may be due to estate value, asset makeup or certain assets, such as business or agricultural holdings, needing a more expert eye.
When a person prepares their will, their advisor should carefully explain the advantages and disadvantages of appointing a solicitor as an executor. There will be a charge for carrying out this role, so the appointment needs to be justified by the complexity of the estate.
However, if a person feels that there is no one else they can trust to carry out the role, solicitors are a good second option.
Telling family members
Once a will has been written, family members do not have to be told. This being said, it is usually a good idea to do so, especially if it includes details about funeral plans.
It can also act as a form of reassurance, letting family know that future plans have been considered.
Once a person has passed away
On death, the appointed executors will take responsibility for the administration of the person’s estate. This includes:
- Securing assets
- Checking insurance policies
- Protecting the estate from loss
- Distributing the estate per the details of the will
- Discharging any taxes e.g. Capital Gains Tax, Income Tax and Inheritance Tax
- Notifying those who have an interest in the estate of their entitlement
- Providing beneficiaries with estate accounts
A Grant of Probate may be needed for executors to deal with certain assets, such as property, shareholdings or bank accounts containing larger sums of money.
When an executor is dragging their feet in progressing the estate administration, but refusing to stand down, it can be extremely frustrating for beneficiaries who are to inherit from a person’s estate.
Here we outline five top tips for dealing with this issue, particularly where an executor named in the will has not yet taken a grant:
1. Act early
As soon as you are notified that you are a beneficiary, start making enquiries of the executor. These enquiries may include asking for details of the legacies left to you (or a copy of the will) and confirmation of when the executor intends to apply for probate. Engaging early with the executor can help to identify is unnecessary delays are likely to occur at an early stage.
2. Where there’s a will there’s a way
Where an executor has the deceased’s will, and simply will not divulge the information in it, provide a copy or submit it to the probate registry to apply for probate, you can issue a subpoena ordering the executor to deliver up the original will to the probate registry.
If the executor fails to comply with the subpoena, they will be in contempt of court. This can then form grounds for asking the probate registry to ‘pass over’ their entitlement to take a grant and allow another appropriate person to step in and take on the role of executor.
3. Next stop…citation
If an executor is refusing to apply for a grant to administer an estate, there is a process by which an application can be made to the probate registry for an order requiring the executor to take a grant. This is known as the citation procedure.
Once a caveat is in place, a draft citation application is made by the ‘citor’ (person seeking to force the executor to take the grant) and is lodged with the probate registry (together with payment of the £4 fee and a draft order).
This is then served on the ‘citee’ (the executor) and the citee then has eight days from the date of service to enter an ‘appearance’ (explanation of their position) at the probate registry.
If an appearance is not entered then the citee can be required to enter one within a set time, or the citor can apply for the grant themselves. Similarly, if an appearance is entered by the cite, but they still fail to apply for the grant, the citor can apply for an order to be made to them instead. This is a good tool to have in your armoury should you be trying to persuade an executor to take a grant and progress the estate administration.
4. Push to stand down
Where concerns have arisen about the executor’s ability to fulfil their duties, or their handling of the estate administration prior to taking out a grant, then you could request that they “renounce” their position.
If they have been carrying out actions as an executor (known as ‘intermeddling’) then they are not able to renounce, but they can still agree to step down. It will still require a court order to remove them but, if this is done with consent, it is relatively quick process. If they won’t agree to step down then a formal application for their removal/passing over of their entitlement to the grant can be made.
It is always preferable to try and get the executor to agree to stand down as executor in the first instance. A letter detailing your concerns and requesting their agreement to stand down, perhaps with the threat of a court or probate registry application if they continue not to co-operate, is a good first step and can also be used an evidence in court if required later down the line.
5. Seek legal advice
Wherever you have growing concerns regarding unnecessary delays by executors, it is advisable to seek legal advice at an early stage to understand what you can do and the likely costs involved. Often, the earlier action is taken the quicker matters can move forward and the estate be administered.
We can help to administer estates professionally and empathetically
Dealing with administration of an estate when someone has died can be an extremely emotional and testing time, particularly when it involves the estate of a close family member or friend.
If you’re the beneficiary of a will and an executor is dragging their feet in progressing the estate administration then we can help – contact Andrew Wilkinson or Debra Burton for guidance and support.
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