- Contested Probate Solicitors
- Valid Will Requirements
- Disputing A Will
- Caveats And Injunctions
- Grant Of Probate Explained
- Executors Duties
- Letters Of Administration
- Distribution With No Will
- Claims For Dependents
- Cut Out Of Will
EXECUTORS DUTIES - GRANT OF PROBATE - UK SOLICITORS
When a person makes a will they usually have someone in mind that they want to deal with their estate and assets after they are gone. That person is usually a close relative or a friend and is often a beneficiary however the testator may chose to appoint a bank or solicitor to the role or jointly appoint several people or organisations. The person or organisation that is appointed to apply for a grant of probate is called an executor under the terms of the will and must carry out the deceased wishes in accordance with the will. The executors duties are set down both in the will and in law and include gathering in all of the assets and distributing them in the way outlined in the will in order to fulfil the final wishes of the deceased.
An executor is the person name in a will who the deceased authorises to deal with their assets in accordance with the provisions of the will after the testator has died. The testator can appoint up to four executors in the will who can make application for probate. Just one person may apply for the Grant of Probate or two or three or all four. The executor derives power from the will itself and is effectively entitled to inter-meddle in the assets of the deceased immediately after death without waiting for a Grant of Probate to be issued which merely confirms the authority granted in the will. An executor should take possession of assets as soon as possible and should insure where necessary without waiting for the Grant of Representation as they are personally responsible to the beneficiaries for any losses. Dependent on the estate it may be that the duties of the executor under the terms of the will are onerous in which case some executors may decline the appointment unless they have a substantial financial interest in the will although many executors appoint a probate solicitor to deal with outstanding matters on their behalf, the costs of which are usually born by the estate of the deceased. Whilst most wills do appoint at least one executor, some wills are silent on appointment in which case the proposed representative must obtain a Grant of Letters of Administration in order to be appointed administrator of the deceased estate which is only slightly different from being appointed executor. The Grant of Probate is obtained from the Probate Registry of the High Court of Justice after valuation of the estate, followed by submission of the will and completion of standard forms. Upon the tax issues being determined by the Capital Taxes Office and paid where relevant, the Grant of Probate will be issued to the executor.
An executor is the person responsible for carrying out the instructions you set out in your will. You are able to select the executor yourself by naming that individual in your will. Virtually anyone, a friend, family member, solicitor or bank can carry out this duty. You can name more than one individual up to a maximum of four to jointly carry out the executors duties.
This position carries a tremendous amount of responsibility and administrators and executors duties are not easy to carry out. For a non-lawyer, the process can be overwhelming which is why many executors opt to ask a solicitor to assist them. The first order of business is to value the deceased’s assets and determine any outstanding liabilities. Bank accounts, liquid assets and property must all be included in this initial assessment. Once the assets have been valued, application is made to the local Probate Registry for a Grant of Probate. A sworn affidavit must be presented to the court which provides details about the deceased, the deceased’s death and the value of the estate. The executor must declare a net value of the assets left to be distributed to the beneficiaries and submits this document to the Capital Taxes Office which decides if they are satisfied with the figures and may call for further information to be provided.
The executor derives power to deal with these matters directly from the will but in practice must apply to the court for a grant of probate to exercise that power. An application form is submitted together with an affidavit and a copy of the original will and an account showing the value of the estate for inheritance tax purposes. A potential executor may be asked to attend for interview at the probate registry at which time the affidavit is sworn and the court clerk will briefly explain what is meant by an executors duties.
The executor's role is one of great responsibility to the beneficiaries and bearing in mind that some estates are of high value may require professional advice and assistance usually from a specialist solicitor or accountant. The executor should bear in mind that they are personally liable for financial losses and in the main are not entitled to be paid for their time and effort unless the appointment is of a professional nature. The main duties of an executor are as follows :-
The executor should urgently ensure that the assets of the estate are secure and where possible should take possession.
Where appropriate the executor should take out insurance to protect the value of any relevant assets.
The executor should collect and safeguard all assets wherever they may be located.
The executor should pay all of the estates liabilities including funeral expenses bearing in mind that some debts take priority including taxes.
The executor should thereafter distribute the estate in accordance with the deceased wishes as set out in the will which may involve liquidation of some assets by way of sale.
The executor should deal with matters expeditiously and failure to do so may result in legal action by the beneficiaries.
Collection and Distribution of Assets
The grant of probate confirms the executor with the legal authority to begin managing the deceased’s assets however that authority is derived from the will. The executors duties are outlined both in law and more specifically in the content of the will. Carrying out the instructions in the will might require the appointee to sell property or shares and to call in the balance of bank accounts. The liquidated assets are used to pay any taxes or other liabilities. What’s left after the deceased’s debts have been paid is then distributed to the beneficiaries in accordance with the terms of the will. The duties of the executor must be performed with extreme care because their is a personal responsibility to see that the taxes are paid and that the beneficiaries receive their inheritances. Many executors employ a solicitor to help alleviate the burden of their responsibilities and to carry out the executors duty on their behalf.
Matters relating to a grant of probate can be complex and it may be that a lay executor having considered what is expected will usurp the executors duties by appointing a solicitor to deal with matters on his behalf. An executor is personally liable to the other beneficiaries in negligence for any errors whilst administrating the estate and may fell more comfortable instructing a solicitor to deal with matters thereby benefiting from the solicitors policy of insurance which indemnifies against professional negligence. Instructing a solicitor has a triple advantage of ensuring that the law is upheld and that the onerous task of dealing with often voluminous paperwork is passed over to the lawyer who has the benefit of negligence insurance. The lawyer is entitled to charge the estate for his legal fees which therefore do not come directly from the pocket of the executor but are deducted from the value of the estate and are therefore effectively shared by all of the beneficiaries.
Importance of Wills
Most individuals possess assets at the time of their death. People want the comfort of knowing that those assets will be distributed to their beneficiaries according to their wishes. The best way to ensure that this happens is to visit a wills and probate solicitor who can assist you in preparing a legally binding document that clearly outlines your wishes. When preparing the will, you can also select an executor who will manage the distribution of your assets on your behalf. The executors duty to the beneficiaries is to carry out the deceased’s intentions with regard to their property.
Should an individual pass away without a will, legal protocols known as the intestacy rules which dictate the distribution of assets come into play. The intestacy rules help an the appointed administrator (who is usually also a beneficiary) to determine who is entitled to claim the deceased’s assets after considering the degrees of relationships individuals have to the deceased. The Grant of Letters of Administration is a document issued by the Probate Division of the High Court of Justice upon application by a person who will subsequently become administrator of the estate. An executors duty and an administrators duty to beneficiaries are very similar in so far as they both have to collect in and subsequently distribute assets. Should there be no qualifying relative under the applicable legal rules, the Government may be able to claim all of the deceased’s assets.
Common Mistakes Made in Wills
The rules and regulations surrounding wills are highly complex and executors face a multitude of arduous duties. Someone with no legal knowledge of wills can step into one of the many pitfalls that can derail their testamentary intentions. A will which fails technically can either revive a previous will or force the use of the intestacy rules. Here are some of the most common mistakes made by those who prepare their own wills:
~ Failing to properly sign and execute the will due to a lack of knowledge of the legal requirements
~ Allowing the Government to claim certain items by failing to distribute all assets in their will
~ Making alterations to their document that do not conform to the legal requirements for a binding codicil
~ Failing to take births, marriages, divorces, deaths and The Civil Partnership Act into account
~ Failing to consider the rights of dependents
Letters of Administration
If there is no will there can be no grant of probate however the court will issue a 'grant of letters of administration' to a relative. That person will collect in and distribute the assets in accordance with the law which lists those relatives in priority who may inherit when there is no will. That person is termed as an 'administrator' of the estate and the duties are broadly similar to those of an executor of an estate. If there are no relatives who satisfy the requirements of the statute then the assets are forfeited and are claimed by the state. The administrator gains power to administer the estate from the issue of the grant and not before.
Our solicitors are specialists in matters appertaining to wills and probate. We will give you initial free advice relating to any queries that you may have and will give a written quotation in order to carry out any legal work relating to a probate case. We also deal with letters of administration and are well versed in legal actions for contested probate in order to dispute the validity or content of any will.