Choosing an executor is one of the most important decisions you make when writing your Will. Your executor will deal with your estate, pay your debts and pass on what you leave, often while your family is grieving. Yet many people pick their eldest child or their spouse in a few seconds. This guide explains how to choose an executor who is willing and able to do the job well, under the law of England and Wales.
What executors actually do
Before you choose an executor, it helps to understand the role. Executors do not simply read the Will and write cheques. Administration often takes a year or more, and sometimes longer for complex estates.
The first steps
Soon after a death, your executor registers it if nobody else has, arranges the funeral if needed and secures your home and belongings. They also tell banks, pension providers and other organisations.
Applying for probate
Next, your executor values the estate and reports it to HMRC. For larger estates, this may mean completing an Inheritance Tax account (form IHT400) and paying any tax due. They then apply to the Probate Registry, part of HM Courts and Tribunals Service, for a grant of probate. This gives them legal authority to deal with your assets.
Paying debts and sharing the estate
Once they have the grant, your executor collects in the money and may sell property. They then pay your debts, funeral costs and any tax, including your final Income Tax position. Finally, they share out what is left as your Will directs, keeping records and accounts for the beneficiaries.
Executors must act in the estate’s best interests and treat beneficiaries fairly. They can be personally liable if they make mistakes, for example by paying beneficiaries before all debts are settled. So the role needs care and a willingness to ask for help. A.D.E. Wills does not provide probate or estate administration services. When the time comes, we can refer your executors to an appropriate professional.
Who can be an executor?
Most people choose a spouse or civil partner, adult children, other relatives or trusted friends. You can also appoint a professional, such as a solicitor, or a bank or trust company that offers executor services.
An executor can also be a beneficiary of your Will. In fact, this is very common, for example where a married couple appoint each other. A few legal rules apply:
- Age: you can name someone under 18, but they cannot act as executor until they reach 18. So it is usually sensible to choose adults.
- Capacity: an executor must have the mental capacity to manage the role when the time comes.
- Number: you can name more than four executors, but no more than four can take out the grant of probate for the same part of the estate.
- Right to refuse: anyone you name can refuse to act.
Qualities to look for in an executor
Trustworthiness and fairness
Your executor will see your financial records and may handle large sums. So you need someone who will act fairly, even under pressure from family members.
Good organisation
Your executor will deal with paperwork, deadlines and many different organisations. Someone who manages their own affairs well is usually a safer choice than someone who struggles with post and bills.
Comfort with money matters
Your executor does not need to be an accountant. However, they should feel comfortable dealing with banks, HMRC and estate agents. Just as importantly, they should know when to seek professional help.
Tact and calm
Often, the personal side matters as much as the technical side. A good executor stays calm, communicates clearly and treats every beneficiary fairly, even when family members disagree.
Time and location
The first few months after a death are usually the busiest. Someone with a very demanding job or young children may find this hard. Also, while much can be done remotely, some tasks, such as clearing a home, are easier for someone who lives nearby. Executors rarely need to go to court.
Family or professional executors?
Family members and friends know your wishes and your family. They usually act without charging a fee, although they can claim reasonable expenses from the estate. Lay executors can apply for probate themselves on GOV.UK, or instruct a professional to help with all or part of the work. However, grief can make the role harder, and siblings may resent one person being chosen over another.
Professional executors bring experience and neutrality, which can help where family tension is likely. They also normally hold professional indemnity insurance, which may help if something goes wrong. On the other hand, they charge fees, sometimes as a percentage of the estate and sometimes by the hour, and these can be significant. So it is worth asking how any professional would charge before you name them. Also, preparing a probate application for a fee is a reserved legal activity, so only certain authorised professionals can do it.
Some people appoint a family member alongside a professional. This can combine personal knowledge with experience, particularly for complex estates.
Common mistakes when you choose an executor
- Choosing by birth order. Your eldest child is not automatically the best person for the role. They may live abroad, be very busy or have a difficult relationship with their siblings.
- Not asking first. Being named without warning can come as a shock, and anyone you name can refuse. So always talk to the people you have in mind before you finalise your Will.
- Assuming your spouse should act alone. A grieving partner may find the role hard, especially if they are elderly or unwell. A second executor can share the load.
- Ignoring age and health. Someone ideal today may not be able to act in twenty years.
- Overlooking conflicts of interest. For example, a second spouse acting alone for an estate that also benefits children from a first marriage may face real tension. Likewise, a business partner dealing with your shares may have competing interests.
- Not naming replacements. If your first choice dies before you or cannot act, a replacement executor avoids problems.
Special situations
Blended families often benefit from executors who are seen as neutral, or from appointing one person from each side of the family. Business owners should think about who understands the business well enough to protect its value.
If you own property abroad, the foreign assets may need to be dealt with under local law. We write Wills covering assets in England and Wales, and we can refer you to an appropriate professional in the other country. Where you have children under 18, your executors will also need to work well with the guardians you appoint.
How many executors should you choose?
When you choose an executor, you can name just one, but most people choose two, plus replacements. Having more than one shares the work and gives mutual support.
In general, one executor can deal with some assets alone. However, all executors who have taken out the grant must normally sign to sell or transfer land, and in practice many banks ask for every executor to sign. So executors who cannot work together can slow things down. Choose people who get on and communicate well.
For example, imagine a widow in her late seventies whose husband named their son as an executor alongside her. The son has a finance background, so he takes on most of the paperwork while she focuses on family. This is only an illustration, but it shows how a well-chosen second executor can help.
Talking to your chosen executors
Once you choose an executor, explain why you have chosen them and what the role involves. Tell them where you keep your Will and important papers, and share any wishes that are not in the Will itself. If someone seems reluctant, do not pressure them, because a willing executor is far better than a reluctant one. Also, have the same conversation with any replacement executors.
It also helps to keep a simple list of your accounts, pensions, insurance policies and advisers. Update it from time to time, and tell your executors where to find it.
Reviewing your choice
The right executor today may not be the right choice in ten years. So review your Will whenever your circumstances change, such as after a marriage, divorce, death or an executor moving abroad. Changing an executor means updating your Will properly or making a new one. Our Legacy Care Plan includes a yearly review for Wills we have written.
How A.D.E. Wills can help
When we write your Will, Edward will talk through who to appoint, whether to add replacements and how to word the appointment clearly. Our Wills are offered at a fixed fee, and you can see the prices on our Wills Pricing page. The GOV.UK guide to making a Will is also a helpful starting point.
If you would like to talk about choosing an executor, call 01865 507174 or email info@adewills.co.uk. You can also read more about our Will writing service.
