Who should your clients appoint as executors?

A Will is one of the most important documents that your clients will draw up during their lifetimes as it  disposes of all the assets owned by them at the date of their death. The executors of the Will will be responsible for administering your client’s entire estate in the best interests of the beneficiaries. Their responsibilities will include collecting the assets, distributing the estate as directed by the Will and agreeing the tax position with HMRC. Your client’s choice of executors is therefore pivotal to the smooth administration of their estate.

Who should be appointed?

The executors must be trusted completely by your client and it is preferable for the intended executors have a reasonable degree of financial understanding (especially if the estate includes investments). The executors have to be prepared to take on what can be onerous responsibilities and must have the time necessary to spend on the estate’s administration.

It is important that the relationship between the executors is considered. Will they be capable of working together harmoniously? Are they likely to have any potential conflicts of interest? Will they be capable of unanimity?

High Court case

The need to choose executors carefully point was illustrated by a case in the High Court.  An application was made by two executors that their brother, the third executor of their mother’s Will, should be removed from his position. The executor in question, the defendant in the action, had lived with their mother for many years as her carer. The defendant was refusing to progress the administration of the estate as he believed he should receive a greater share of the estate than his two brothers. He also alleged that his mother had made a later Will leaving her entire estate to him.

The court held that the defendant’s potential claim gave rise to a conflict of interest with his role as executor and, if his allegation about a later Will was correct, he could not administer an estate which provided for the brothers to benefit equally. The court removed the defendant as executor, but in order to protect his interests required his brothers to nominate a solicitor with whom they had no connection to act as a third executor in place of the defendant.

Conflicts of interest between executors might not be apparent when your client makes their Will, so it is important that they undertake regular Will reviews and if any potentially contentious situation develops appropriate adjustments can be made to the executors’ identity.

Special situations

If your client has a child living overseas then extra thought should be given to whether they should be appointed executor, given the delay that might occur in signing and processing documents. Some clients might like to appoint an overseas child in any case on the basis that they might return to the UK in the interim. If they do not return, they could renounce probate at the time or appoint someone who is UK resident to act as their attorney in obtaining the grant of probate and administering the estate.

If your client has unusual assets then it may be necessary to consider whether the proposed executor will require special knowledge to act effectively. For example, an author might wish to appoint a literary executor to deal with their literary estate only. If your client owns a business then it is helpful if the prospective executor has some knowledge of the business which would enable them to run it until it can be wound up or passed over to the beneficiaries.

Professional executors

There may be occasions when it is advisable to appoint professional executors. Perhaps the estate is a particularly complicated or contentious one, there may be ongoing trusts created by the Will or your client does not have a family member or close friend who could act as executor.

If your client decides that a professional executor would be appropriate then it will often be beneficial to appoint a trust corporation, particularly as the trust corporation will never retire or die before the testator.  Our own trust corporation, Clarke Willmott Trust Corporation Limited, does not make a charge for acting as executor and the firm’s charges for acting in the administration of your client’s estate would be discussed with your client at the time the Will is drawn up.