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Your Will – The Executor(s): Choosing Wisely

I don’t know how often it happens that someone is surprised following a friend’s death to discover that he/she has been named as one or more executors of a Will?

It goes without saying that that should never occur. One should always ask the chosen executor whether they are prepared to be named as such, taking care to explain any particular features of your estate on top of the general duties they will need to undertake.

These duties are to administer your estate according to the terms of your Will, gathering in your assets, paying your liabilities (including to His Majesty’s Revenue & Customs), obtaining probate and then distributing the assets according to the terms of the Will, thereby completing the administration on signing off the estate accounts.

That may be the end of it – or there might be continuing trusts of which the named executor(s) may or may not be a trustee.

The main thing obviously is that your appointee is up to the task, in terms of being someone whom you trust and who is likely to get on with the surviving members of your family. Indeed, any executor might be a close member of the family.

My wife and I have each appointed the other as sole executor/executrix subject to surviving thirty days, failing which our three children. Happily, we all enjoy very good relationships.

A named executor can always refuse to act, but once they have assumed any of the duties of an executor by doing what is known as ‘intermeddling’ in the estate (for which the bar is set quite low), then they have to finish the job.

If a named executor doesn’t survive you, you can appoint replacement executors in your Will. On the other hand, if an executor dies after you but before the estate has been administered, there is rather an odd rule called the “chain of representation” which provides that his/her own executors step into the role.

So, you could possibly choose a close family member. Or perhaps a trusted friend of the family. I have always advised against appointing your solicitor or other professional and certainly against a bank. The exception might be that if say your solicitor happens to be a friend first.

The important thing is that they know what they are in for, so you can have those advance conversations with them.

Executors have to act unanimously, which (if you have more than one) is something to bear in mind in terms of relationships between them.

An executor can always be a beneficiary, but if he/she would not be otherwise, then, given the burden that is being placed on them, I always suggest leaving them a cash legacy in appreciation.

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