Who can be the executor?
The people legally allowed to deal with a deceased person's estate are called generally referred to as the executors. By taking on these rights they also assume certain responsibilities and liabilities. These are the same as duties of administrators (where there is no will) and duties of personal representatives (which includes both executors and administrators). Here we will just call them executors.
The executors are responsible for distributing the estate of the person who has died in accordance with the terms of the deceased's will.
Where there is no will, the people who are responsible for the distribution of that person’s estate (called the intestate) are usually their next of kin. They are called administrators and their responsibilities are effectively the same as those of the executors. Instead of following what is written in a will, they must follow rules laid down by parliament – the same rules cover who is entitled to be the administrator. For more information about those rules, see Dying Without a Will/Intestacy.
What the executors do
In order to be able to distribute the estate the executors will need to collate a full picture of the value and extent of the estate.
They must first pay any inheritance tax due. Once the grant of probate is received (or the letters of administration where there is no will) they must collect in all the assets, pay all the debts and liabilities and then distribute the remaining estate in accordance with the terms of the will.
The executors and administrators are legally bound to carry out their duties properly. They are personally liable for any mistakes or incorrect distributions.
It is important to understand that the executors must carry out their duties comprehensively. In other areas of law, people often have to weigh up the advantages and disadvantages of a course of action, such as deciding whether the costs of taking action outweigh the benefit of winning. Executors must make as full enquiries as they are able and deal with all assets within the estate, no matter how small. This can involve carrying out searches with relevant institutions or placing legal notices in appropriate newspapers and other publications.
Executor duties in detail
- Ascertain the whereabouts of the will.
- Inform all institutions where the deceased held assets of the death. All accounts will then be frozen until a grant of probate is issued or letters of administration where there is no will.
- Obtain proper valuations of all assets held by the deceased as at the date of death. Also obtain accurate assessments of all debts and liabilities of the deceased as at the date of death.
- Complete the inheritance tax returns on the basis of the information obtained in 3 above and apply to the Probate Registry for a grant of probate or of letters of administration.
When the grant of probate or letters of administration is issued, collect in the assets of the deceased, pay the debts and liabilities of the estate, transfer particular assets to the beneficiaries, pay the relevant legacies and distribute the residue to the beneficiaries.
(For more detail see Probate Explained para 3. What is the probate process?)
In carrying out these duties the executors and administrators have a number of responsibilities that they must comply with where appropriate. These are:
Executor responsibilities in detail
These are the same as responsibilities of administrators (where there is no will) and responsibilities of personal representatives (which includes both executors and administrators). Here we will just call them executors:
- Obtain proper valuations of the assets of the deceased as at the time of death.
Take all proper steps to protect the assets of the deceased and to manage any business of the deceased.
- Prepare and submit tax returns for inheritance tax and other taxes ensuring that all appropriate allowances, reliefs and write downs are applied for.
- Obtain any relevant tax clearances before distribution of the estate.
Pay and settle all debts owing by the deceased, including all taxes.
- Complete and file all relevant documents for the court application for the grant of probate.
- Ensure that the wishes of the person who died have been carried out as set out in the will.
- Distribute the estate.
- Prepare estate accounts for beneficiaries.