Choosing an Executor for your Will
What is an executor and what do they do?
An executor is a person named in the Will by the testator with the legal authority to administer the estate upon their death. The executor has the responsibility of ensuring that the assets are administered according to the law and according to the wishes in the Will.
It is the executor’s job to protect the estate in the interest of the beneficiaries, manage the administration and apply for probate (if applicable). Every estate is different and some estates are easier to administer than others so it’s important to choose an executor you trust to handle your affairs.
Who can be an executor?
Anyone can be appointed as an executor but they must be over the age of 18 and have mental capacity. An intended beneficiary can also act as the executor of your estate.
You must name a minimum of 1 executor, most commonly this is a spouse, partner or child. You can appoint up to 4 executors in your Will but they must act jointly, this means they are all equally responsible in the administration and all have an equal right to participate. However having a lot of executors can sometimes cause complications and disagreements, the more people involved the more opinions there will be.
It is most common and recommended that 2 executors be appointed. The advantages to this is that if one is not able to act there is still an executor who can take on the job, a ‘back up’ executor. It also means that the work can be split between them, making the process more manageable. This can help to reduce stress and pressure on the executors by sharing the responsibility.
Who should you choose to be your executor?
When choosing you executor it’s important to remember that your last wishes will be in their hands, you should pick someone you know will honour your instructions and make decisions that best benefit your estate and its beneficiaries.
Final duties always recommend that you choose an executor that you trust; this could be a family member, friend or other.
Should I choose a family member?
As your first option for an executor you should consider a family member, this is because they are more likely to handle your estate in an sensitive and honourable manner. If your executor is close to your beneficiaries or is also a beneficiary they are more likely to have everyone’s best interests at heart.
Naming a family member also allows more options when it comes to the administration of the estate. Your executor will have the option to administer the estate themselves (if the estate is simple or probate is not required) which could save money on unnecessary solicitors fees, the benefits of which could be passed onto your beneficiaries.
If your estate is more complicated you can still name a family member as your executor but entrust them with the decision about which solicitor would be best for the estate. This allows them the opportunity to shop around for a competitive price and service, which in turn could save your estate thousands that could be passed on to your beneficiaries.
You should choose a family member that you believe is responsible and also capable of handling your affairs. Instructing them on your wishes whilst you are still around will make their job easier. So once you have decided on your executor it would be a good idea to talk them through your assets and your wishes so when the time comes they know where to start.
Should I choose a professional to be my executor?
Naming a solicitor as an executor can be considered a good option if your estate is complicated and you do not have any family or friends you trust to engage a solicitor upon your death. Having a solicitor administer the estate can provide some comfort that your estate is going to be handled properly. This comfort does however come at a cost so when choosing a solicitor as executor it is important to understand how they are going to charge your estate for their work.
Solicitors can charge in different ways, an hourly rate, a percentage of the estate or a combination of both. Unfortunately there are incidences of solicitor’s fees being excessive and not reflective of the actual work that has taken place.
When a solicitor is named as the sole executor it can be difficult for the beneficiaries or next of kin to have them removed if their fees are high or their service is lacking. This is because there is nothing forcing a solicitor to renounce their executorship and they can be more resistance to renounce.
When choosing a solicitor as executor make sure you take your time to find the right one for you and your estate. It would be worth considering naming a family member or friend as a joint executor so that their work can be monitored rather than giving them absolute authority.
It is rare for a testator to actively choose a bank as their executor they are most commonly written into a will as executors when the testator has their Will written by the bank (usually during a free will promotion).
When a bank is named as executor the administration will actually be done by an independent probate provider and although this does guarantee that your estate is going to get administered, they often charge on a percentage rate and that rate is usually higher than you would find if you approached a solicitor independently. There is also nothing forcing a bank to renounce their executorship making it difficult for the deceased’s beneficiaries to prevent unfair fees.