If you are appointed as an executor it is important you know the extent of your duties and responsibilities.  The below also applies to personal representatives or administrators.

We receive instructions every week from people who are not legally trained and do not know the duties and responsibilities they have when administrating an estate.  This blog provides a general summary for executors and personal representatives but should not be a substitute for tailored legal advice.

What is a grant of probate?

Generally speaking, in order to administer a deceased’s estate and distribute assets, the executors need first to apply for a grant of probate (where there is a will), or letters of administration (where no will exists).  The term grant of probate is, however, commonly used with reference to both.  The grant is a document issued by the court that you may need to produce to obtain all monies/investments held by banks and to sell properties of the deceased.  The application for the grant requires information about values of all assets (i.e. properties, savings, investments, cars etc.) and all debts (e.g. loan) of the estate.  In addition, completion of an inheritance tax account (if required), signing of the statement of truth and payment of tax (where tax is due) before the grant is issued.

What are my duties as an Executor?

The content of the statement of truth signed by executors reflects the statutory duties of the executors (Section 25, AEA 1925):

1. Collect and get in the real and personal estate of the deceased and administer it according to law.
2. When required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court.
3. When required to do so by the High Court, deliver up the grant of probate or administration to that court.

In addition to the statutory duties described above executors have a duty to:

• pay the deceased’s debts;
• safeguard assets;
• invest the assets, where the assets are unlikely to be distributed for some time;
• review investments;
• ascertain the scope of their power under statute and/or will

It may also be prudent to obtain professional advice from an investment adviser or appoint an investment manager.

What about the time limits? 

In terms of a time limit for distributing the deceased’s assets in accordance with the will or the intestacy rules, the Administration of Estates Act 1925 provides that a personal representative is not bound to distribute the estate of the deceased before the expiration of one year from the death (known as the rule of the ‘executor’s year’). Despite its wording, this rule applies to both executors and administrators. Of course, many estates will take far longer than a year to administer, for example where the inheritance tax position is under negotiation with HMRC or real property is refusing to sell. Provided there are good reasons for the delay and the personal representatives are acting honestly and reasonably, there should be no repercussions for administration taking longer than a year. Nevertheless, if an interim distribution can be made whilst sufficient assets are retained to cover any unascertained debts, assets should not be unnecessarily held back by the executors. Executors should also ideally provide an explanation to creditors and beneficiaries if the administration is delayed beyond the executor’s year.

Do I need to keep records?

Executors have a duty to prepare and keep estate accounts. You should also keep all the valuations for assets of the estate and all of the estate tax returns.  Beneficiaries and creditors can request sight of the estate accounts and if this is refused the beneficiaries and creditors can apply under the Administration of Estates Act 1925 for an inventory and account to be ordered by the court. Nevertheless, it is good practice for executors to provide full estate accounts to residuary beneficiaries of an estate as a matter of course, which should demonstrate the final residual figure after the payment of liabilities, expenses and legacies, and the receipt of income.

What do I need to tell the beneficiaries? 

We would always advise to keep beneficiaries informed as a matter of good practice and courtesy.  Having said that, you do not have to give beneficiaries everything they request.  You can exercise your discretion to disclose, considering the reasonableness beneficiaries’ request.  If you choose not to disclose, beneficiaries could make an application to the court.  If an application is made for disclosure, the court will review the reasonableness of the executors’ conduct and may order additional disclosure or determine that there is no reasonable entitlement in the circumstances.    

What can I do if there is a problem?

Where a conflict arises (between executors and beneficiaries/creditors; between executors or between beneficiaries) the executors should:

• take professional advice;
• try to negotiate to find a resolution; or
• apply to court for direction.

If you require advice in relation to estate administration or a potential or actual estate dispute, please contact Elliot Mather specialists probate or dispute resolution teams for more details.

Location 

Our Solicitors are able to provide expert advice across the country with a network of offices based in: Chesterfield, Nottingham, Mansfield, and Derby.

How to get in contact 

Our team are on hand to help you and can assist wherever you are based. Please call us on 0330 333 2613 for a no-obligation, initial discussion or email enquiries@elliotmather.co.uk and we will call or email you back.

• Probate