We have dealt with what happens if you die without making a Will, i.e. the Laws of Intestacy will be used to distribute the estate. For a Will to be valid by English Law it must
a) Be in Writing
b) Be signed and witnessed by two independent witnesses
c) Nominate at least one Executor
d) Make a distribution of some property that the testator owns (NB Property means anything that you own such as specific items, money , bank accounts etc. Not just houses)
One of the most important things that are covered in a Will is the nomination of Executors. Who you nominate depends on some very important factors. Firstly we will cover what an executors Responsibilities are.
In broad terms and Executors role is to take the Will through probate (the proving of the Will) and to distribute the assets to the beneficiaries of the Will as per the instructions in the Will. The executors have no say in who gets what unless there are specific directions stipulating that it is at the discretion of the Executors.
Responsibilities of An executor
(a) Register the death of the client. Obtain copies of the death certificate – several may be required, one for the funeral directors and others for each of the funds that may have to be released or transferred e.g. bank accounts, insurance policies, shares and other equities. Many organisations will need to see the original death certificate before releasing funds. Copies obtained from the Registry of Births Deaths and Marriages are regarded as originals.
(b) Arrange the funeral. The cost will usually be the first expense paid from the deceased’s estate. Make enquiries about the existence of a prepaid funeral plan. If a Client purchases a funeral plan they should inform the Executors and advise them of the providers of the plan.
(c) Arrange to open a personal representative’s bank account. This will be used to receive any monies due to the estate and any loan organised to pay for Inheritance Tax and/or probate fees.
(d) Inform all relevant persons or organisations.
(e) Arrange for valuation of the estate.
(f) Draw up a full schedule of debts that must be paid from the proceeds of the estate.
(g) Complete the forms required by the Inland Revenue capital taxes office so that it can be established whether any Inheritance Tax is due.
(h) Pay any IHT due. If the estate is liable for Inheritance Tax the Executors account of the estate is passed to the Inland Revenue. The Grant of Probate cannot be issued until the Tax is paid. The Executors usually have six months from the date of death to pay the tax.
(i) Complete the Probate forms and send them to the Probate Office along with the original Will, the death certificate and the Inland Revenue account.
(j) Apply for Grant of Probate via the nearest Probate Registry. An appointment will be made for the personal representative to “swear the papers” within about 5-6 weeks of receipt of the Probate forms at the Probate Office.
(k) Collect in debts/other assets. Once the tax is paid, Grant of Probate can then be applied for and copies of the Grant should be sent to anyone who owes the estate money. The Executors now have a legal authority to pursue any debts owning to the Estate.
(l) Distribute the estate. When the Grant of Probate is received the estate can be distributed according to the terms of the Will. The Executors must prepare and sign accounts showing how the estate has been distributed. They must be able to show that they have acted in accordance with the terms of the Will in case there is any dissent from the family of the deceased.
(m) Retain papers. Once the estate has been finalised all papers, including the Grant of Probate and the accounts, must be stored safely for a period of 12 years.
As you can see the duties of an Executor and quite onerous and should not be taken lightly. The responsibilty is firmly palced on the Executors shoulders to carry out the Testators wishes. Anyone who is nominated as an Executor can refuse to act – being nominated is not legally binding. But if they do start the process they then can’t decide half way through that they don’t want to continue. An executor can appoint another executor i.e. A solicitor if they feel they would be unable to complete the process.
In the next post I will cover who you should nominate as an executor.
you can read more here