Agreeing to be someone’s executor – what it means
If someone dies and they have named you in their Will as their executor, your job is to identify and collect in everything they owned when they died, pay off their debts and liabilities and distribute what’s left to the beneficiaries under the Will. Lawyers call this ‘administering the estate’. Usually, a Will names more than one executor so you won’t be doing the job alone.
But it’s not an easy job and it’s possible to say you don’t want to do it, or to say that you will only act as a ‘reserve’ executor, leaving the others to get on with it without you – although if one of them becomes unavailable, being a reserve means you may then have to step in. Take advice if you’re minded to refuse or only agree to be a reserve.
If you do decide to do it, you and the other executors need to apply for a document called a Grant of Probate. Until they see a Grant, officials and others such as banks and brokers will refuse to deal with you, so you won’t be able to get at any money in the deceased’s bank accounts, or sell land or stocks and shares, for example.
You’ll need to fill in a tax form setting out all the assets and liabilities of the estate at the date of death before you can apply for a Grant. You have to track all the deceased’s assets down and value them, and flush out all the deceased’s debts and liabilities. You also need to track down the beneficiaries.
All of these job can be harder, and take longer, than you think. Stats released last year showed the average time to obtain a Grant through a solicitor was 11 weeks, with an average four weeks in Wexford and 20 in Letterkenny. The average in Galway and Cork was 16 weeks, Sligo and Limerick was 12 weeks and in Waterford was 10 weeks. The average if you apply yourself went from eight weeks in Wexford to 48 in Dublin.
Once you have the Grant, it’s crucial to remember that the assets in the estate aren’t yours. You are just dealing with them on behalf of the deceased person. You need to keep them entirely separate from your own assets and (while you’re entitled to expenses) you aren’t entitled to payment for your work. You have a duty to administer the estate as soon as practicable and to act honestly – to take as much care when dealing with the deceased’s assets as you would if they were your own.
Some particular issues that can make the job harder include:
- Jointly owned assets, such as the family home, which might pass automatically to, for example, a surviving spouse rather than forming part of the estate you are administering.
- Rights under insurance policies and pension schemes.
- Overseas assets, such as holiday homes or shares in foreign companies.
- Dealing with tax – these include taxes due at the date of death, taxes payable as a result of the administration of the estate itself and, possibly inheritance or capital gain tax arising as a result of distributing the estate to beneficiaries.
- Insuring assets until they are sold, or distributed to beneficiaries.
- Impatient beneficiaries, who don’t understand the process or the work involved and want their legacies now.
- Challenges to the estate by, for example, family members who don’t think they received enough under the Will.
- Family members who might try to remove you as executor if they think you are misbehaving.
- Tracking down all beneficiaries, wherever they are (and, for inheritance tax purposes, finding out if they have already received gifts from the deceased, and when they did).
- Distributing the right amounts to the right people, especially where they have to pay inheritance tax.
- Keeping records and producing final accounts for the beneficiaries showing where the money in the estate came from and where it went.
Many executors decide to get help from a solicitor – and many Will-makers decide to appoint a solicitor as their executor in the first place. If you’re an executor or potential executor, we’re happy to help.
In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.