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Megan Manganaro
Megan Manganaro ,
PARALEGAL
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Executors: what are the key responsibilities?
19 December 2019

A family member or friend may choose to appoint you to administer their estate and carry out the provisions of their Will. If you choose to accept the role, there are a number of key responsibilities which may arise during the process.

What must I do immediately when someone dies?

Register the death 

An executor may be required to register the death if relatives are unable to do so. This should be done within five days of the death in the sub-district where the death occurred. It is necessary to provide information such as the date and place of birth of the deceased, their full name, occupation, usual address, marital status and information about their spouse (if applicable). 

Attend to the funeral

In sorting their affairs, the deceased may have purchased a funeral plan during their lifetime. However, when this is not the case, it falls to whoever arranges the funeral to pay any associated costs. Many banks will release funds from the deceased’s bank account to pay for the funeral.

Secure any assets

It is important that the deceased’s home and any other valuable assets are preserved. If not, and damage occurs, executors could be personally liable for any loss not covered by insurance. If a property is unoccupied, it is important to inform the insurance company of this.

Establish whether a Will exists and where it is located 

Often, relatives will be aware of the existence of a Will and its whereabouts. However, if this is unknown, then enquiries will need to be made. This may be through writing to solicitors in the deceased’s local area or by placing an advertisement in the London Gazette. There are also a number of online sources which can assist in checking for Wills.

Do I need a Grant of Probate? 

The appointment of the executor is from the testator’s Will. The Grant of Probate confirms the validity of a Will and the executor’s authority to act. Whether an executor needs to apply for a Grant of Probate depends on the size of the estate and the types of assets within it.

In most circumstances a Grant of Probate is required before gaining access to assets of an estate in order to carry out the wishes of the deceased. In some circumstances, such as low-value estates (usually less than £5,000), a Grant of Probate may not be required.

An executor will need to accurately calculate and notify HM Revenue & Customs of the deceased’s assets and debts. Therefore, it is important to contact and gather in full details of the deceased’s estate from the relevant authorities including values of any banks accounts, pension plans, shareholdings, personal possessions and any debts owed to them or by them.

Executors are also advised to ascertain whether the deceased made any gifts within 7 years of their death as this can have implications on the inheritance tax payable from the estate.

How do I apply for a Grant of Probate?

In order to obtain a Grant of Probate, it is necessary to prepare and submit:

A Statement of Truth for Executors

This is effectively the application for the Grant. It sets out various details about the deceased and their estate as well as the applicant’s entitlement to take out the Grant. 

Any Will and Codicils

A cheque for the applicable fee payable

The fee is currently set at £215 (or £155 for applications made by solicitors) if the estate is valued at £5,000 or over, plus £1.50 per copy. There is no fee where an estate is under £5,000. It is important to note that fees may rise in the future.

Form IHT205 or IHT400

The appropriate inheritance tax form must be completed, which will depend on the size of the estate and its complexity. Form IHT205 is completed if an estate is exempt, whereas a Form IHT400 is required where an estate is complicated and/or inheritance tax is payable, along with payment of the inheritance tax due. It is the executor’s responsibility to raise the funds from the estate to pay the tax. Again, banks will usually release money from the deceased’s account to fund this.

What are my tax responsibilities?

It falls to the executor to ensure that any tax due from the estate is paid within the relevant time limits.

This includes making payment of the inheritance tax within six months of the date of death and completing and submitting forms to HM Revenue & Customs within 12 months.

Executors must also report to HM Revenue & Customs both lifetime income tax and capital gains tax, and the same due for the administration period.

Distributing to beneficiaries 

Once all debts and any legacies are paid, executors can proceed to make payment of the final balance of residue due to the beneficiaries.

Difficulties however may arise where a beneficiary or creditor cannot be located.

What is my role in claims against the estate?

Where a valid Will exists and the beneficiaries due to inherit are satisfied with the provisions made for them, it is unlikely that claims will arise against the estate.

If, however, there is any doubt as to the validity of the Will or inadequate provision has been made for close family and/or dependants of the deceased, executors are responsible for handling any claims which may be made against the estate.

Not only must the executor deal with such claims but they may attract personal liability where a claim is successful.

Do I have to act?

To be appointed as an executor by Will does not compel you to act. Should you feel you are unwilling or unable to act either temporarily or indefinitely, there are options available to you to reserve or revoke your appointment.

Renounce

Providing that you have not intermeddled with the estate, i.e. interfered with the administration of the estate, you can renounce your right to act as executor by signing a Deed of Renunciation.

If you have interfered with the estate, then you cannot renounce your role as executor. Further, you risk a breach of duty – and personal liability – arising from an improper administration of the estate if you have not carried out your role correctly.

Once you renounce, any remaining persons appointed as executor can then proceed to obtain the Grant of Probate. In the event you were appointed as the sole executor of the estate, this does not oblige you to act. You may still renounce your right; it then falls to anyone with an interest in the estate to apply for a Grant. 

Reserve power

As an alternative, you may feel it more appropriate to have ‘power reserved’. This means that any other appointed executors can obtain the Grant but, by reserving power, you retain the right to apply at a later stage.

Comment

If you are appointed as an executor under a Will, it is important at the outset to consider whether it is a role you will be able to perform effectively, otherwise you could later attract personal liability should you fail to perform to meet the duties you owe to the estate. The role of an executor is extensive and can be daunting so it is important that, where appropriate, you seek specialist advice.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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