The executor of a Will is the person who will deal with the estate administration after a death. It is an onerous role, and if someone is appointed as an executor, they will have personal responsibility for winding up the affairs of the individual after their death. In some circumstances, it may be desirable to have a different executor. We look at what the job entails and answer the question, Can the executor of a Will be changed?
What are the Common Tasks of an Executor?
Executor’s duties are set out in Section 25 of the Administration of Estates Act 1925, as follows:
- collect and get in the real and personal estate of the deceased and administer it according to law;
- 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;
- when required to do so by the High Court, deliver up the grant of probate or administration to that court.
This is sometimes referred to as the executor’s oath.
The executor is responsible for winding up the estate from start to finish. This generally includes the following tasks:
- Ensuring the death is registered with the Registrar at a Register Office
- Arranging the funeral, although close family members may do this, the executor can liaise with them to ensure they are reimbursed for the costs from the estate
- Finding the Will
- Protecting the deceased’s assets, including making sure there is adequate insurance in place
- Notifying all asset holders and creditors of the deceased’s death
- Valuing the estate, to include all savings, investments, property, valuable items such as cars and furniture, mortgages, tax liabilities, credit card debts and other bills
- Calculating the value of the net estate and whether Inheritance Tax is payable
- Obtaining an Inheritance Tax reference number from HMRC, where applicable
- Calculating the amount of Inheritance Tax and paying this to HMRC
- Applying to the Probate Registry for a Grant of Probate
- When the Grant of Probate is received, arrange to liquidate assets, including the sale or transfer of property
- Deciding whether statutory advertisements for beneficiaries and/or creditors are needed and placing these where applicable
- Clearing all of the estate’s debts
- Preparing detailed estate accounts
- Distributing the estate to the named beneficiaries
How Long Does an Executor Have to Wind Up an Estate?
Ideally, an executor will complete the estate administration within one year, known as the executor’s year. However, if the estate is complex or includes property or numerous assets, it can take longer.
It is important to keep beneficiaries updated as to progress to reduce the risk of suspicions and disputes.
What Can an Executor Not Do?
In ensuring that they prioritise the best interests of the estate and the beneficiaries, there are several actions that an executor cannot take, including:
- Buying assets from the estate themselves, known as self-dealing, includes selling an asset to someone else and later buying it from them
- Allowing their personal interests to conflict with the interests of the beneficiaries
- Not complying with the terms of the Will
- Breaching their fiduciary duty to the beneficiaries
- Misusing estate funds
- Failing to wind up the estate promptly or effectively
- Paying themselves from the estate for their time in dealing with the administration, only a professional executor, such as a solicitor, can make a charge for their services
- Favouring one beneficiary over another
- Failing to provide reasonable updates to beneficiaries in respect of the estate administration
How is an Executor Appointed?
An executor is appointed in someone’s Will. You can appoint one or more executors and also name replacement executors who can act if your first choice is not able to take on the job when the time comes.
Who Should You Choose to be Your Executor?
The role of executor can be fairly challenging. There will be a substantial amount of correspondence, and it is essential not to miss deadlines or fail to protect assets. Executors must act in the best interests of the estate and its beneficiaries at all times.
If the executor makes a mistake which causes a loss to the estate, they will be personally liable.
Someone likely to be able to manage the job when the time comes should be chosen. This might be someone younger than the testator. If they have limited time or are not confident in dealing with complex issues such as Inheritance Tax and estate accounts, they can engage a probate solicitor to deal with the administration.
This is a common option and reduces the risk of personal liability. The executor would then only need to sign paperwork provided by the solicitor, and would be freed from dealing with asset holders, creditors and beneficiaries directly.
Can an Executor Act Alone?
If two or more executors are appointed, the Will may give them the authority to act alone. However, if they are appointed to act jointly, for example, they must make all decisions together, and no replacement executor is named, then a single executor cannot act alone.
Where executors have the authority to act independently, then an executor can renounce probate, which means they will not take up the role. It is essential that they do not take any action in administering the estate. If they do, they will not be able to renounce.
To renounce, the executor will need to sign a deed of renunciation or Form PA15, which is available on the government’s website. Once the form has been completed, signed and dated in the presence of a witness who must also sign and date, it should be given to the executor who will be applying for a Grant of Probate.
Another option is to have power reserved. This means that an executor will not need to take part in the administration process, but they have the option to take on the role at a later date if they wish.
Can an Executor Witness a Will?
An executor is permitted to witness a Will, provided they are not also a beneficiary or a spouse or partner of a beneficiary. It is usually preferable to have an independent witness, however.
Can an Executor Benefit from a Will?
Yes, an executor can benefit from a Will, and it is common for them to do so, as people often choose a spouse or a child as their executor.
Can a Will Be Changed Without the Executor Knowing?
There is no obligation to tell someone that a Will has been changed and that they are no longer your executor. However, it is advisable to discuss matters with someone before appointing them as your executor to check that they feel able to take the job on.
The task is often lengthy and time-consuming, so preparing them in advance is recommended. They can ask a solicitor to deal with the administration on their behalf if they do not have enough spare time.
How to Change the Executor of a Will
When changing the executor of a Will, a new Will must be made. Some minor amendments can be made by signing a Deed of Variation, but it is not possible to change executors in this way; it can only be used to change the distribution of assets.
Making a new Will is a good opportunity for the whole document to be reviewed to check that the rest of it is still as desired or whether any other alterations are needed. For example, if a new executor is appointed, the person making the Will or testator may want to leave them a larger gift in appreciation.
How to Change the Executor of a Will After Death
It is not possible to change the executor of a Will after death simply due to preference. If an executor does not renounce or have power reserved, then the court will need to be involved if there are concerns that the executor is not acting in the best interests of the estate or is not dealing effectively with the estate administration.
You are advised to speak to a solicitor before taking action, as this is a complex area of law, and it is important to understand the implications and be sure that you are taking the best action in the circumstances.
Changing an Executor: Step-by-Step
The process for changing an executor will generally involve the following steps:
- Speaking to the executor or writing to them, setting out your position and asking if they will consider remedying the situation
- Collecting evidence of any wrongdoing on the part of the executor. This could be:
- Misconduct
- Incapacity
- The executor is no longer qualified to act, for example, they are serving a prison sentence
- Failures in dealing with the estate administration process
- A conflict of interest
- Applying to the court under either:
- Section 50 of the Administration of Justice Act 1985 (generally used for wrongdoing or fault on the part of the executor); or
- Section 116 of the Senior Courts Act 1985 (generally used when probate has already been obtained)
It may be possible to avoid legal action by appointing a probate solicitor to deal with the administration on behalf of the executor. This is generally a much quicker and more cost-effective option.
A probate solicitor will manage the process efficiently, and the deceased’s family members may find it easier to deal with a professional if the relationship with the executor has broken down.
Contact our Probate Solicitors
If you need guidance on estate matters or have questions about the role of an executor, our probate team is ready to assist. To learn more about our services, visit our Wills, Trusts & Probate page.You can get in touch by calling 0330 173 3980, emailing info@witansolicitors.co.uk, or filling out our contact form. We’ll talk through your circumstances and explain how we can help.
