As an industry, we do struggle to get the right message across with regards to appointing the right executors. Quite often we are aware that acting as an executor for the lay person could be time consuming and perplexing even for the most capable of people. We also know there can be immense risks in tax liability and distribution liabilities if the executor gets it wrong, not to mention the risk of deliberate mishandling.
According to The Law Society Gazette, claims for mishandling a deceased’s estate have more than tripled over the last year, according to figures released by the High Court.
Data from the Chancery Division shows there were 368 claims lodged for breach of fiduciary duty in 2013, up from 107 on the previous 12 months. The claims range from theft of assets by the executor to fraudulent distribution of assets to favour certain beneficiaries of the will above others.
Matthew Evans, a partner in the Cardiff office of Hugh James, attributes the rise to the increased use of acquaintances or family members as DIY executors and trustees.
Evans said using a friend or acquaintance can be a ‘false economy’. Many families are following this path in an attempt to save money but finding it costs them more than they bargained for when they have to use the courts to recover assets after a mistake or even theft by the DIY executor. ‘The amount of money at stake can tempt some ‘amateur executors’ to raid the estate for their own benefit’, he said, ‘especially with the rise in house prices’.
Lay executors, said Evans, may also be tempted to ‘purposely misinterpret’ the will in order to favour one beneficiary over another, particularly when the deceased has a complex family. ‘Amateur executors may not want the money of the deceased to go outside of their immediate family and so take matters into their own hands distributing the assets as they see fit, even if that means they are acting contrary to their responsibilities as a legal executor,’ he said.
Chairman of the Law Society’s wills and equity committee and partner at London firm Gedye & Sons, Richard Roberts, said the risk of mismanagement increases as more and more people take out probate themselves. ‘Many wrongly perceive the task to be simpler than it is,’ he said’. ‘There will always be lay executors who can do the job well and are perfectly trustworthy, but there will always be group of executors, who either administer an estate badly through ignorance or administer it fraudulently,’ added Roberts.
Striking the right balance of providing advice, yet not encumbering the family with a professional who will not renounce can be difficult. KCT are happy to be appointed as reserve executors so that the family members can stand aside if they wish and let the professional step in. Equally, if the situation necessitates, we could be appointed as the primary executor. We commit to renouncing without charge should the family request. The testator can therefore be confident that their family have the necessary support in place without the worry of being tied in to a professional and their costs.