Why you need to assume arduous earlier than agreeing to be the executor of a will

Ahead of the Budget and any tax nasties coming our way, my husband and I have written our wills – a breeze of a task compared to appointing an executor.

It sounds simple, but choosing one has been as tricky as choosing godparents for our two children – if only because Andrew and I have both been executors and know what a hefty burden we might be laying on another family member’s shoulders.

Picking one seemed straight-forward at first. If I die first, Andrew gets the job of sorting things out, and vice versa.

Then our solicitor asked what would happen if we both died together. Who would we appoint as executors to sort out our estate and ensure our children were looked after? A trickier decision.

Then what would happen if both of us and the kids were killed? An extreme situation to consider, and a grim scenario for our executor to step into. It has left us stuck.

How do we choose the right person or people? They would be responsible for carrying out our wishes after our deaths, managing our estate, selling everything and passing things on to our heirs.

On the one hand you want someone who’ll do the job properly and not cause more upset in an already emotional situation. On the other hand, just one look at our families’ busy lives and we realised the weight of responsibility.

Add into the mix the fact that the number of executors being sued by disgruntled beneficiaries rose by 21 per cent last year and the role becomes even less appealing.

According to research by TWM Solicitors, irate families have dragged executors to court declaring that they failed to act in their best interests, or their neglect has damaged the value of the estate.

But let’s row back to exactly what an executor does.

Responsibilities shouldn’t be underestimated – it is an executor’s task to sell assets, calculate and pay any inheritance tax, settle any debts left by the deceased and ensure heirs receive their legacy.

Get it wrong and you could find yourself personally liable for unpaid inheritance tax, in the midst of a bitter family dispute or, as is increasingly common, in court.

We’ve heard stories of executors discovering debts owed by the deceased after they’ve distributed all the estate, leaving them with a choice of settling the debt themselves or clawing back money from family members. Or executors who have thrown in the towel and appointed solicitors to act on their behalf, due to the pressure from beneficiaries and arguments within the family.

Probate delays in recent years have left some executors paying inheritance tax bills out of their own pocket as the bill is due before probate is granted. They then must refund themselves out of the estate. ‘Appointing an executor should be done after taking professional advice,’ says Caroline Foulger, partner and head of private client at TWM Solicitors.

‘Pick the wrong executor and costly disputes can easily happen.’

If you have been asked to be an executor, or are considering who to choose, it’s vital to understand what is involved, as many do not realise what they are taking on.

‘An executor is responsible for ensuring that the wishes laid out in someone’s will are followed after their death,’ says Kieran Osborne, chief executive of estate planning firm Squiggle Consult. Executors may also have to manage the deceased’s property until sold. This could mean clearing the contents, insuring and maintaining it.

‘Sometimes even simple tasks, like paying beneficiaries, can be more complicated than anticipated – confirming the identity of a beneficiary, running a bankruptcy check, ascertaining bank details are correct,’ says Jade Gani, chief executive of Circe Law.

‘Being a will executor can be a thankless task,’ says Foulger. ‘The biggest risk for beneficiaries, and the executors themselves, can be as simple as a lack of understanding of what is expected, or a lack of time to deal with matters properly and efficiently.’

If the heirs think an executor hasn’t done a good job, there can be family rows and divisions.

Executors can also find themselves out of pocket if they make mistakes. For example, errors in calculating inheritance tax could, in future years, lead to HMRC demanding the executor settle any unpaid bills.

‘Executors are personally responsible for all aspects in the administration. One of the most technical is having to declare the estate’s inheritance tax position; reporting the accurate value of all assets and any relevant lifetime gifts to HMRC and claiming all the relevant reliefs, exemptions and allowances,’ says Foulger.

It doesn’t have to be a nightmare, though, argues Osborne, who adds: ‘It can be a challenging responsibility, but it doesn’t have to be awful. For someone who is organised and communicates well, it’s often manageable, especially with the right support.’

Here, experts give their tips for taking on an executor role without the hassle.

Make sure your executor has something to gain from doing the job, says Caroline Foulger at TWM Solicitors. ‘There are many cases where someone chooses an executor who isn’t going to inherit anything at all from their will. In such cases, they’re asking that person to go through what can be months of hard work, stress and even rows for no compensation.’

An executor not being diligent can cost beneficiaries, and potentially the executors themselves, thousands. If you are an executor, take care when selling items. It’s quite common to see disagreements between executors and family members over how and when they sell assets. 

‘If the executor sells shares which later jump in price, it can trigger disputes. The same can happen if the executor sells a property during a slump,’ Ms Fougler says.

‘Timing the market is an impossible task but some heirs sadly see it as part of an executor’s job.’

Gary Rycroft, a partner at Joseph A Jones and Co Solicitors LLP, says it’s madness to take on the role without seeking legal advice.

‘If an executor is only a minor beneficiary or not a beneficiary at all, if the executor makes one false move they may still be personally liable for their mistake,’ he says.

‘Taking legal advice can also relieve the burden of personal responsibility, plus legal fees are paid out of the estate. ‘If the executor takes formal legal advice, the solicitor can be blamed for any errors and, indeed, rely on the solicitor’s insurance policy to cover any losses or claims.’

Estate planning firms can offer executors different levels of assistance, ranging from free advice to calculating figures and taxes to full estate administration where the executor can relinquish a lot of responsibility.

‘It also helps if the person who has made the will gives some thought to the jobs they are leaving for an executor. Having clear instructions in your will, and access to professional advice, can make the process smoother.

‘When choosing an executor, you’ll want to pick someone you trust, who is organised, reliable and able to handle financial and legal matters. It’s not just about their relationship with you, but also their ability to manage what can be a time-consuming task. It’s often wise to appoint a back-up.

‘Also, if you appoint more than one executor, consider if they will get on. Disputes between them may create problems or delays.’

Do make a clear and valid will, says Jade Gani of Circe Law. If you want to make life easier for your executors, start with an up-to-date valid will then move on to leaving clear information on your accounts and assets.

‘Keeping details of account numbers and values will be helpful, though be careful not to include passwords or PIN codes,’ she says.

‘If you use an accountant, financial adviser or other professional, keep their details together with your personal documents. The more organised you are, the easier it will be for your executors.’

As for our decision? Andrew and I have opted to put the professionals in charge if we all die. Our solicitors will act as our executors and gift everything to charity.