Who should be the Executor of a Will?

Executors are people chosen and named in a Will by the Testator, who is the individual whose Will it is. The Executors of a Will are responsible for administering the estate of the Testator when they have passed away. Up to four Executors can be named in a Will, and it’s best practice to name at least two.

In this blog, we’ll provide an overview of the options available and things to consider when choosing your Executor(s).

How to choose an Executor

When selecting who to name as Executor(s) in your Will, there is no official framework or criteria. Almost anyone can be appointed, but there are key points worth considering. For example:

• Capacity – do the people named have the mental capacity and time to complete the necessary tasks? The Executor will be faced with a lot of legal jargon and paperwork, and it should be expected that the process will take at least several months to complete
• Age – anyone can be named, but if a Grant of Probate is required, the applicant must be over 18 at the time
• Willingness – it’s worth advising your Executors that you want to name them in your Will; this provides them the opportunity to let you know if they don’t wish to take on the role

Executors have a lot of responsibility, so it’s important to think carefully about who to appoint. They must deal with all property, money, assets, personal belongings, debts, and taxes tied to the estate. They are liable for any mistakes made during the estate administration process and must ensure that inheritance is distributed to the correct people in a timely manner.

Can an Executor be a beneficiary of a Will?

An Executor of a Will can also be a beneficiary. It’s common for this to be the case. However, it’s not a requirement – your Executors do not have to benefit from your estate.

Can an Executor be a family member?

You can name one or more family members as Executors. As stated above, it’s best practice to inform them that they have been named. They should be prepared for the additional responsibility at the difficult time of losing a loved one.

Who can’t be an Executor?

Other than those who don’t have capacity, there are few restrictions on who can be your Executor. As an example, a former spouse/civil partner cannot act as an Executor if the marriage or civil partnership came to an end after the Will was written.

Also, if your Executors are named as beneficiaries and they have officially witnessed your Will, they forfeit their right to benefit from the estate. Beneficiaries (and their spouse or civil partner) cannot also be witnesses of a Will. Therefore, if you want someone to be your Executor and a beneficiary, you shouldn't have them as a witness.

What happens if you don’t appoint an Executor?

If you don’t appoint an Executor, your estate will be left without an assigned individual to take care of it. This is especially risky if you don’t leave a Will at all; your estate will then be distributed according to the rules of intestacy, meaning people who you do not wish to benefit from your estate may receive inheritance upon your death.

If someone dies intestate (without a Will) an Administrator will be appointed. This individual is also determined by the rules of intestacy, and they have the same duties as an Executor. The umbrella term for both Executors and Administrators is Personal Representatives.

What can’t an Executor do?

When acting as an Executor, there are a few things that breach duty. For example, going against the terms of the Will or acting against the best interests of the beneficiaries. Executors have a fiduciary duty to the deceased and the beneficiaries and must ensure the estate is distributed in accordance with the wishes set out in the Will.

If an Executor fails to act or breaches their duty, the court may need to get involved. If they deem the Executor unsuitable, they can remove them from acting on the estate. If there is only one Executor, they must be replaced with someone else. If an Executor dies before they complete the estate administration process, the chain of representation may determine who inherits the role.

What is a professional Executor?

Another option is to name a professional as one of your Executors. This can be a Solicitor, Will Writer, Financial Adviser, or a probate and estate administration specialist like Kings Court Trust. A professional Executor can be more efficient and impartial than a family member or friend. When choosing a professional provider, you should carefully consider the services they offer, whether they’re regulated, and how they price their services. Their fees are usually payable from your estate, but it’s important to remember that this will reduce the amount that is distributed to your beneficiaries. Learn more about the benefits of using a professional for probate and estate administration.