Choosing an executor to safeguard your interests
When choosing the executor of a will it is crucial to get the decision right. The consequences of choosing badly can be disastrous. Your executor (or executors) is the person who will be carrying out your last wishes as set out in your will. Unfortunately, family members are not always the most trustworthy candidates to take on this role. Appointing a solicitor as the executor of a will can be a sensible option – they have a professional duty to carry out the wishes within the will in the way they were intended. The information below will outline the responsibilities of an executor and as such, the qualities required in order to fulfil the role adequately. It will also demonstrate how appointing the wrong person can have vastly negative consequences.
The Role of an Executor
Anyone over the age of 18 can be chosen to become the executor of a will. It is very common for people to choose those close to them - often their spouse/partner or their child/children, but this isn’t a necessity, anyone known to the maker of the will can be chosen. It is wise to appoint more than one executor in case one of them passes away before the creator of the will. It is also beneficial to appoint a solicitor as one of the executors (this will come with a charge) as they will come with expert knowledge and experience in carrying out the intended wishes.
The role of an executor is to carry out the instructions set out in the will as intended by its creator. The executor will have legal responsibility to ensure that the terms of the will are carried out and will be responsible for administering the estate. As such, the duties which come with the role are rarely simple and can take many months to complete. These can include the jobs listed below, however this is by no means a complete list, and there may be other obligations, depending on the will.
- Distributing the estate to the named beneficiaries.
- Show how the shares amongst the beneficiaries have been calculated.
- Registering the death.
- Obtaining the death certificates.
- Obtaining valuations of assets.
- Paying debts and expenses.
- Dealing with Tax matters such as Tax returns and inheritance tax (if applicable) etc.
- Keep records of the money within the estate.
The most important thing when choosing an executor is to ensure that they are very trustworthy. As noted above it will be for the executor to carry out the wishes outlined in the will and therefore they must be able to be trusted to do so in the correct fashion. The recent case outlined below serves as a perfect example of why an executor must be chosen carefully and how trusting your nearest and dearest is not always the most sensible.
Choosing the wrong executor
Following the death of Janette Trim’s father it fell on the shoulders of John Gimbert, as the executor of his will, to carry out his final wishes. Instead of doing just that Gimbert, a 65 year old ex-police officer, took advantage of his position and Miss Trim’s vulnerability (she suffers from severe learning difficulties) and went on to steal around £180,000 from her.
Using a ‘labyrinthine network of bank accounts’, Gimbert helped himself to money left for Miss Trim to buy cars, a computer and to benefit his children. He also took it upon himself to transfer a bungalow, belonging to Miss Trim, to his son, David Gimbert, for a mere £1.
It is clear that John Gimbert acted in a greatly dishonest way and the court found him guilty of four counts of theft and conspiracy to defraud. He was given a jail sentence of three and a half years. His son, who received the bungalow, was also found guilty of conspiracy to defraud and was given a suspended jail sentence.
Legal advice can help you get it right!
As seen above, a seemingly trustworthy executor - in this case a close family friend and ex-police officer - can turn out to be the complete opposite. Appointing a solicitor as an executor over a family member or close friend can be very beneficial. If you are thinking of appointing an executor of your will, it’s worth discussing your choices with the solicitor who is drafting your will for you. You can also ask about the costs involved of appointing a solicitor to be your executor, and think about whether this would be a good option for you. If you have been asked to be an executor, and are worried about the duties and obligations this might impose on you, again, a legal professional can advise you on what is required.
If you have any questions about drafting a will, choosing an executor or your duties as an executor, contact one of our specialist private client team who will be happy to help.