An Executor is the person who administers your estate and ensures that your wishes are upheld after your death. Duties include the collection of the deceased’s assets, payment of outstanding debts, management of the deceased’s tax affairs and distribution of the estate to beneficiaries.
The Executor is usually appointed in your Will. If no executor has been appointed, or if your executor is unable or unwilling to act, another person such as your lawyer can step in to administer the estate. To carry out their duties the Executor will need to apply for a Grant of Probate. This is the Court’s official recognition that the Will is legally valid, and the applicant is authorised to deal with the estate.
It may be beneficial to appoint joint executors (unless your Will is very simple) to share the responsibilities of administering your estate. Also, if one of the appointed persons refuses to accept the responsibility or is no longer alive, the other Executor named in the Will is already in place to carry out their duties. When Executors act jointly, it also minimises the risk of an individual Executor making decisions in their own interest. Nevertheless, a potential problem of having joint Executors is in situations where they do not agree on what is best for the estate. If this is the case the estate can endure delays and incur unnecessary legal fees. So be sure to appoint joint Executors that are likely to cooperate with each other.
The Executor is responsible to preserve, protect and administer the estate diligently. Therefore, if the estate suffers a loss resulting from deliberate or negligent actions on the part of the Executor, this will amount to a breach. If this happens, an action can be taken against them in the Supreme Court and if found liable, the Executor must make good, any loss to the estate.
Types of breaches include:
- Misappropriation or maladministration of assets.
- Breach of trust, or breach in his or her duty of care.
- Failure to observe the provisions or directions in a Will.
- Profiting for themselves whilst acting in their capacity as Executor.
- Making unauthorised investments resulting in a loss to the estate.
- Use of estate assets as a paydown on personal debt.
Given the important considerations when appointing the Executor, it is advisable to speak to a Scammell & Co Wills and Estates lawyer, to minimise potential problems, delays and added expense in the administration of your estate.
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