The responsibilities of an executor

If a deceased person leaves a Will, they will name someone as an executor – a person who will oversee and deliver portions of the estate to the relevant parties.

The executor is generally a person that the deceased person knew and someone who they felt could be trusted to ensure that their estate would be properly distributed. As most (but not all) have knowledge that they will be the deceased person’s executor, it is likely that they already have a general idea of the Will’s contents or even have a copy of it.

The executor will perform a lot of roles following the person’s death. Officially, an executor’s primary role is to deliver portions of the estate to the relevant parties (known as ‘beneficiaries’) after any debts or taxes that the deceased person owed have been paid off. Unofficially, however, they will do far more than this. This can include everything from being the person who registers the death to even arranging the person’s funeral.

As there is often a lot to manage as an executor, it is often helpful to secure the services of a probate solicitor. The term ‘probate’ is the legal term to describe the action of confirming and administrating the Will according to the deceased’s wishes.

As such, a probate specialist will be able to work with you to ensure that you fulfil all of your legal duties as the executor, help you understand the intricacies of probate law and complete the relevant legal documents. They will also ensure that you cannot be found to have performed your duties incorrectly and will minimise the threat of any legal action from the deceased person’s family members or creditors.

These are just some of the roles an executor is expected to fulfil as part of their duties:

  • Death registration,
  • Organising funeral arrangements,
  • Tracing the deceased’s property,
  • Valuation of the estate,
  • Settling taxes and debts,
  • Application for legal right to distribute the estate (probate),
  • Distributing notice of the deceased’s estate,
  • The sale of assets,
  • Allotting the estate in accordance with the Will,
  • Making a record of transactions

As there is a lot to manage, this is why it is best to consult with a solicitor who specialises in probate law – such as the Wills, Trusts and Probate team at Foys. As estates worth under £5,000 do not need you to apply for probate, we are going to focus on some of the above things that you need to do as an executor when dealing with an estate in England that has a value in excess of £5,000.

Death registration

As soon as a person dies, their death should be registered as soon as possible at the nearest registry office. In England, this is required within five days. To do this, the executor and/or next of kin must secure a certificate from the hospital doctor or, alternatively, permission to register the death (which is given by the coroner). From here, you should make an appointment at the closest registrar’s office to complete the registration process.

As well as this medical certificate, you will also need documents that prove the person’s identity and address (such as a birth certificate, certificate of marriage, a driving licence and/or a council tax bill). The registrar will tell you what exactly they need. Once this is done, they’ll provide you with two documents: one known as the ‘green form’, which is a Certificate for Burial or Cremation, and a BD8 form which is a Registration of Death. The former permits a burial or cremation to take place for the deceased person; the latter is a form you should fill in and return in the pre-paid envelope if the deceased was receiving state benefits or a State Pension.

In order to execute the estate, you will likely need extra death certificates to pass onto various utility companies (such as energy and water providers), banks, insurance companies, government bodies and other organisations that would need to know about the person having passed away.

The government’s service for doing this is known as the ‘Tell Us Once‘ service. This service will notify nearly all government organisations of the person’s death. As well as a death certificate, you’ll need to also provide the following to use this service:

  • The deceased’s date of birth,
  • Their National Insurance number,
  • Their driving licence number,
  • Their Vehicle registration number (if applicable),
  • Their passport number

As well as these details, you’ll also be required to give the following:

  • Any details regarding the deceased person’s benefits or entitlements (e.g. State Pension),
  • Any details regarding the provision of local council services that the deceased was in receipt of (e.g. Blue Badge for disabled people),
  • Details regarding a surviving spouse or civil partner (i.e. their name, address, telephone number and their National Insurance number or date of birth),
  • Should there be no surviving nor mentally capable spouse or civil partner to handle affairs, details regarding the deceased’s next of kin (i.e. their name and address),
  • The name, address and contact details of the executor,
  • Any details regarding any other pension schemes the deceased was involved with (e.g. public sector or armed forces’ pension schemes)

Organising funeral arrangements

As soon as you have the ‘green form’ – the Certificate for Burial or Cremation – you, the executor, will be able to make arrangements with a funeral director. Often a Will contains instructions regarding this process, such as: who should be consulted; how the ceremony should be conducted (if at all); and, if applicable, what should be done with the ashes after a cremation (e.g. scattered across a particular area or given to a specific person for safekeeping) or where the deceased should be buried.

The costs associated with a funeral or ceremony should come from the deceased’s estate; however, as money to cover the costs of a funeral or ceremony cannot be made available before the probate, the costs will have to be temporarily covered by the executor. There are services that can help cover the costs for you who will then recover the costs from the estate at a later date.

Tracing the deceased’s property

At this point, you should also be moving to track down any assets that were owned by the deceased at the time of their death. While the most valuable and important of these assets are generally stated on the Will, some may not be. These assets will include bank accounts, property and possessions. However, this should also include debts such as loans, bills and mortgages too.

There are tools to help you – such as the Land Registry. You can use this to find any additional properties that the deceased may own. Should you find any property, note that any house that is unoccupied following the death of the owner needs to be secured and the relevant insurance company must be notified of the occupant’s death.

Valuation of the estate

In order to determine the value of the estate, the executor must work with a number of different professional valuers and organisations to work out the true worth of the estate. This can become rather complicated. While houses and property are relatively easy to accurately value with the use of a Chartered Surveyor, it’s often contents that can prove problematic to value. Valuable paintings, porcelain collections and expensive jewellery can prove (if not trickier then) time-consuming. It is best to use professional valuers with specialisation in the field that the possession belongs to as this will ensure accurate valuations.

As for other items that are not valuable, you may want to see about using a company that does house clearances. This will ensure easy, safe and legal removal of household items while enabling the house to be viable for sale as soon as possible. We still have more to discuss but, as you can see, being an executor can be very difficult work – particularly as this may be a time of mourning. At Foys, our probate solicitors will help guide you through the process and can seriously lighten the load.

Settling taxes and debts

If an estate is valued above £325,000, there will likely be Inheritance Tax to pay. This is because anything above that threshold figure will be subject to tax. This tax will not be paid by the individual beneficiaries but by the estate. It is the executor’s responsibility to obtain the value of the estate, complete forms and pay the relevant tax due. Significant gifts made by the deceased in the seven years before their death should also be factored into Inheritance Tax too.

However, tax may not be due if everything above the £325,000 threshold was either left to the deceased’s spouse/civil partner or was given to a charity/community amateur sports club. This is because there is no Inheritance Tax due on any asset transfers between spouses/civil partners. The threshold can also be significantly increased if everything is given away to the deceased’s children or grandchildren. This is inclusive of stepchildren, adopted children and foster children. How much it increases by is dependent on the tax year.

Another consideration is if the deceased has left at least 10% of the estate’s net value to charitable causes, then the amount of Inheritance Tax charged on assets over the threshold will decrease from 40% to 36%. As the executor will be personally responsible for any mistakes made in the calculation and payment of Inheritance Tax, it is important to get in touch with one of our probate solicitors at Foys to ensure you are doing everything correctly.

Application for probate

The need for a solicitor who specialises in Wills and probate can be an important step – especially in cases where there is some level of complexity involving the estate. While the executor can apply for a grant of probate themselves, it is definitely worth considering using a solicitor to do this for you. At Foys, our Wills, Trusts and Probate team will be able to do this.

Distributing notice of the deceased’s estate

As it is not always clear that a deceased person has debts, the executor may want to consider placing a notice in both the local newspapers and public record publication The Gazette. This will afford any local or national creditors an opportunity to make a claim as they are not likely to be aware of the person’s death otherwise.

This is important because, as aforementioned, the executor is personally responsible for the distribution of the estate. If you did not make the necessary efforts to find any hidden creditors, then you (the executor) will be held personally responsible for the debt. This is another matter that our solicitors at Foys will be able to help you with to ensure compliance and eliminate this risk.

The sale of assets

As long as there aren’t any surviving joint owners of a house that the deceased owned, and there were no instructions in the Will to indicate what should be done with the property, the executor will be responsible for what should be done with the property. Often the executor will decide to sell the estate in order to pay off any debts (like the mortgage) and deliver the remaining funds according to what is specified by the Will.

It can be very important to have a probate solicitor on your side when selling property as, again, the executor is personally responsible for the estate. It may be beneficial to sell the house off quickly in order to get access to more immediate funds. However, if the property is sold off quickly and for less than the market value, then the executor may face legal action from beneficiaries of the Will. Conversely, the beneficiaries may want to wait for higher offers to come in which can extend the amount of time, effort and energy required to sell the house. At Foys, we can help you with this process to ensure any decision is taken on sound legal advice that offers you the best protection against any legal action.

Allotting the estate in accordance with the Will

After all of the above has been completed, it’s time to distribute what is left to the beneficiaries in accordance with the Will. This is not a quick process and you should only do this after at least half a year has passed to ensure that there are not any late creditors or others who may challenge the Will or the way it has been executed – as set out by the Inheritance (Provision for Family and Dependents) Act 1975.

A complicated part of this process is the question of pensions and life insurance claims. You need to check and see with any pension or insurance providers to see if there are certain rules around how the money that was paid into these schemes should be distributed. This money may be due to a particular person or it may be able to be rolled into the estate.

One thing to watch out for is whether or not one or more of the beneficiaries have been declared bankruptcy. If you make a payment directly to a beneficiary who is bankrupt (either wittingly or unwittingly), then you (the executor) may be hit with a debt. This is because any inheritance to a bankrupt beneficiary must be shared to their Trustee in Bankruptcy (or Official Receiver) and not directly to the beneficiary. This enables the Trustee to use the money to pay off any debts accrued by the bankrupt beneficiary.

While any bankrupt beneficiaries are required by the Insolvency Act of 1986 to disclose to their Trustee in Bankruptcy that they are to be in receipt of inheritance, they may not always do this. As such, the executor must perform their own due diligence and find out whether or not beneficiaries are bankrupt before making any payments.

If this is not done, the bankrupt beneficiary may face prosecution in the Magistrates Court, and the executor can be held personally liable to pay the amount to the Trustee in Bankruptcy. As checking to see if beneficiaries are bankrupt can be a time-consuming process, particularly if the estate has a lot of beneficiaries, then it’s another reason why our probate solicitors can seriously reduce the load. They will be able to make searches to ensure that you know whether or not beneficiaries are bankrupt or not.

Making a record of transactions

Finally, an executor is responsible for keeping a note of every transaction that has been carried out in their role as executor of the estate. This is not only a legal requirement, as set out within the Administration of Estates Act 1925, but a very important step in covering you against any legal action. What you should detail as part of the estate’s accounts include the following:

  • The estate’s assets and value at the time of the person’s death,
  • The estate’s liabilities and value at the time of the person’s death,
  • Any money to HMRC as part of Inheritance tax (the Inheritance Tax account),
  • Any value that assets gained or lost (the capital account),
  • Any money gained after the person’s death to when the assets are transferred or otherwise realised (the income account),
  • Any fees paid to the court, conveyancing services, surveyors, legal advisors, estate agents, bankruptcy search services and other relevant expenses (the administration expenses account),
  • The total money paid to each beneficiary (the distribution account)

What else can a probate solicitor help with?

We have described a route that is followed by many executors; however, there are also many instances where this path can be deviated from due to other circumstances. Take, for example, if there is disagreement over who should be the executor or if two executors were appointed and cannot reach agreement on decisions taken on behalf of the estate. Additionally, if the deceased person did not leave a Will, this can cause serious complications for any potential executor.

A probate solicitor can be essential in these scenarios and in others, including:

  • If the estate is bankrupt, thought to be bankrupt or there are questions surrounding the estate’s bankruptcy,
  • There are complex and unconventional circumstances (e.g. when the deceased person’s assets are within possession of a trust),
  • The estate continues to earn a regular income that pushes it over the Inheritance Tax threshold,
  • If the deceased lived outside the UK and/or had foreign assets or properties,
  • If a potential beneficiary was intentionally left out of the Will but tries to make a claim as if they were a beneficiary (e.g. an estranged child, an ex-partner, etc.)

There are many more instances that can complicate matters for an executor. As well as the previously mentioned benefits, these are further reasons why an experienced probate solicitor can be so important as it is likely that they have seen most, if not all, scenarios play out before and, consequently, know the correct response.

Contact the wills and probate specialists at Foys

Being an executor may seem like a thankless task but there is likely a good reason as to why you were chosen for the role and the likelihood that the deceased person put their trust in you to distribute their estate. This sense of responsibility to this friend, loved one or valued acquaintance often motivates executors to do their best. But, in order to ensure that happens, it is advisable to have legal counsel in place.

An executor can face many challenges so having a probate solicitor help can be hugely beneficial to not only their ability to carry out their responsibilities, but also ensures that there is an expert offering practical and sound legal advice who is never more than a phone call away – should a sudden problem arise.

Our qualified and dedicated Wills, Trusts and Probate team at Foys are considered amongst the best in England in dealing with all matters relating to executing Wills and managing probate. For over 40 years, we’ve helped executors settle estates all across the north of England and Midlands. Our service helps executors understand the process, what it entails, the responsibilities of an executor – all in a way that is digestible and easy to follow. For many, this advice and guidance from Foys is invaluable in settling the estate with minimal stress.

We’re happy to offer you a FREE initial consultation so that we can understand your case and explain to you how we can help – all without any financial commitment. To talk to a member of our Wills, Trust and Probate team, and get your free initial consultation, simply call 01302 327 136 or get in touch using our Online Form today. 

Posts Relating To The responsibilities of an executor

Enquire About Our Services Today

Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below