Articles
What to do when being called on to be an Executor or Administrator of a Will
4 June 2004
The responsibility
Performing the role of Executor or Administrator is an enormous
responsibility, imposing a range of duties and obligations on you. The
relevant area of law - ‘probate’ – is a complex mix of statutory rules,
fiduciary duties and the common law. There are high standards to be
followed and the task is not as straightforward as simply following the
instructions contained in the deceased’s will, in the event they have one;
it is not a comprehensive guide to your responsibilities and there are
many things that the will won’t tell you to do. ‘How?’ ‘When?’ and ‘In
what order?’ are the most frequent questions. Not knowing the answers
might affect the condition of the estate and expose you to the frustration
and distress of beneficiaries, or even worse; if their entitlements are
negatively affected in any way by your actions, they can take legal action
against you.
The assistance of a solicitor will substantially reduce this risk
You also have to follow probate and trustee laws and a range of court
decisions in order to carry out your responsibilities fully, to everyone’s
satisfaction and at minimum risk to yourself. Probate solicitors have a
full knowledge of your rights and obligations as an executor or
administrator and can help you to deliver. They will help you avoid the
obstacles and share the risks with you.
Some examples
An outline of just some of the requirements faced by an executor
(appointed in a will to dispose of the deceased’s estate, according to
that will) or an administrator (appointed to dispose of a deceased’s
estate when there is no will) will illustrate what a complex and
time-consuming responsibility it can be:
Do you want to do it?
If you have been appointed an executor in a will you must determine,
quickly, if you want the job. If you do anything beyond arranging the
funeral, you will no longer be able to decline the appointment.
Grant of Probate
You may need to obtain a Grant of Probate to administer the estate and
this will mean dealing directly with the Probate Registry of the Supreme
Court. Experienced probate solicitors will help you to complete the many
legal forms and the dealings with the Registry that this involves.
What’s in the estate, what’s owed and what’s it worth?
The initial step is to identify everything the deceased owned, down to
the last book or piece of jewellery and everything he or she was entitled
to, such as unpaid wages. Equally, you must identify all the deceased’s
debts and other liabilities to determine if the estate if financially
solvent. Your efforts must be exhaustive and you may not even know where
to start looking. Obviously, this process can be a massive task.
But it doesn’t end there. Beneficiaries are entitled to the maximum
possible benefit from their entitlement and it is in the interests of
everyone that condition of all the assets in the estate be optimised. You
may have to delve further into the nature of the assets; are there assets
in a poor state which may be restored and bought up to their full value?
What is the value of each asset? Do I have to take legal action against
someone for negligently managing an asset? You owe a duty of care to the
beneficiaries to ensure this happens.
Also, the deceased’s outstanding debts will have to be paid, whether to
individuals, companies, financial institutions, or as taxes owed to the
government. To do this, assets that are not specifically left to a
beneficiary may have to be sold to pay those debts. Other assets may be
sold and proceeds from such a sale must then be safely invested so that
they can be maximised for the beneficiaries.
Clearly, these are major undertakings for anyone acting alone and
without assistance.
Keeping accounts
You will have to keep full accounts of all monies received or spent in
the process of disposing of the estate. However sound one’s intentions may
be this is, understandably, a highly sensitive area and requirements of
accuracy and propriety are stringent. Professional help with this will
ensure that you meet all your obligations and relieve the pressure of
meeting the expectations of the beneficiaries and the law.
Distributing the assets
A crucial step is the act of giving formal notice of the intention to
distribute the assets in the estate. The timing, form and placement of the
notice are extremely important, as it is the last chance that creditors,
or anyone else with a claim on the estate, has to notify you of their
interest. This is another indication of how many people or institutions
there may be who have a strong interest in your administration of the
estate and how you are doing it.
Are you entitled to payment for your efforts?
Don’t forget, you may be entitled to some kind of payment for your
efforts. If so, you should get that entitlement. But, like many other
aspects of the job, it is not straightforward and the law has numerous
requirements that have to be met. A solicitor can clarify this process for
you.
There’s help available
These are just a few examples of your obligations as an executor of a
will or administrator of an estate. Clearly, it can amount to a full-time
job. The responsibility is considerable and the requirements are many.
It is in your best interests that you consider the services of
experienced probate solicitors – AWM Dickinson & Son. We know probate
law and have clear professional obligations to do our very best for you
and the beneficiaries.
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The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult a lawyer for individual advice regarding your own situation.
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