A will’s executor is responsible for settling a deceased individual’s finances. The legal right to manage the deceased’s estate is known as probate.
Executors take on many vital duties and responsibilities in their role. You can read our full guide to an executor’s key duties.
In this post we’ll outline what powers an executor of a will has when carrying out these duties. Whether you’re an executor and you’re wondering what sort of capacity you have, or you’re a beneficiary wondering what the executor is capable of, this guide should clear up what is and isn’t possible.
For more information about the probate process, including the insurance implications, call us on 0208 8290 9086 or you can email the team direct at personal@anthonyjones.com.
Executors Have a Lot of Responsibilities, But Somewhat Limited Power
First, it’s important to understand that, regardless of what powers an executor of a will has, they can’t exactly act with impunity.
Everything an executor does has to be in the best interests of the will’s beneficiaries. Beneficiaries can therefore challenge the executor if they do not feel that the executor is acting in their best interests, or if they feel they are taking too long to carry out their duties.
What Powers Do Will Executors Have?
Executors can:
- Access the deceased’s bank account and financial records. However, they can only do so in order to calculate the value of the deceased’s estate, and to calculate their debts, in order to make an inheritance tax submission.
- Pay inheritance tax. The executor will submit all relevant financial information to HMRC, who will assess whether any inheritance tax is due. The executor can then work to ensure that this inheritance tax is paid, which may require taking out a loan.
- Apply for probate. Once inheritance tax has been calculated, the executor can apply for a Grant of Probate. This will give them the legal power to manage the deceased’s estate.
- Settle the will. A grant of probate gives the executor the power to gather all assets, to settle all debts, and to distribute all inheritances to the will’s beneficiaries.
- Finalise the estate. The executor can retain all the documents that accumulated throughout the probate process, such as receipts, bank statements, and certificates. They can ensure that these are safely filed, but they must produce records to anyone who has a good reason to request to see them.
Other Key Responsibilities for Executors
Above we have outlined the legal powers that a will executor may have when settling a will. But the executor may take on additional responsibilities beyond these legal duties:
- Locate the will. The most recent version of the will should specify who should act as an executor, and it may outline the specific responsibilities they will take on in their role. It may also list some co-executors, with whom the executor will then have to collaborate.
- Register the death. The executor can take it on themselves to register the death with the local registry office, and to obtain copies of the death certificate, which they may keep for their records.
- Organise the funeral. The will may stipulate that the executor is responsible for organising the funeral. If so, the executor will have the legal power to make all key decisions about the funeral. However, as we mentioned above, the executor must always act with others’ interests in mind. This means they should liaise with the deceased’s family, and they must make sensible and reasonable decisions when it comes to covering costs.
What Powers Does an Executor Have When It Comes to Property?
The executor may have additional powers concerning any property in the deceased’s estate.
In UK law, beneficiaries cannot do anything with their inherited property until the probate process is complete. As a result, the executor may have the legal power to manage the property throughout the process. This can include making decisions about keeping the property safe and secure while it’s unoccupied.
You can read our full guide to an executor’s responsibilities concerning property.
What is an Executor Not Allowed to Do?
- Change the will in any way, including who inherits. An executor must carry out the instructions of the will exactly as they are set out. They can’t give different people different shares, so they can’t add, remove or change beneficiaries or change what has been bequeathed.
- Use estate assets for their own personal benefit. Executors must not treat the estate’s assets as their own. They can’t take any money or property unless they have been authorised by the will.
- Act without fulfilling their fiduciary duties. They must act in the best interests of the estate and the beneficiaries, which means being impartial, transparent and taking the right level of care. They must keep estate funds and assets separate from their own, keep proper records, pay debts and taxes, and only distribute assets once the estate is ready.
- Distribute assets prematurely or improperly. Executors must pay any debts (including funeral costs), taxes, and liabilities before distributing assets. They must not hand over inheritances while liabilities remain.
- Act unilaterally unless all executors If more than one executors are appointed, major decisions, especially concerning property or the sale of land, need to be agreed by all executors, or otherwise follow what the will states, rather than one acting alone.
- Make changes just because they think it’s fair or better. Even if an executor thinks sharing out the proceeds of a will in different proportions might be more reasonable, or that circumstances have changed, they must still follow the will unless beneficiaries agree to a formal change. Any change to the will would be done via a “deed of variation”.
Why are Executors Restricted in their Powers?
The restrictions are there because an executor is not the “owner” of the estate. Instead they are a fiduciary whose job is to implement the wishes of the deceased and protect the interests of the beneficiaries. Their powers come from the will and from law, via probate. Their powers do not give them the authority to act for personal benefit or to re-decide the deceased’s intentions.
If an executor does go beyond what their power allows, maybe by mis-using estate funds, distributing assets unfairly, or ignoring debts before distribution, beneficiaries can challenge their actions. The executor may be personally liable to repay losses to the estate caused as a result of their actions.
Specialist Insurance Throughout The Probate Process
Joe Penny, Associate Director at Anthony Jones says:
“There’s no denying that it’s hard work being an executor. Taking the time to understand exactly what’s required of you, and exactly what’s within your power, can make things a little easier.
“At Anthony Jones, we can also help make your role as an executor a little easier to manage. For example, if you need to look after any property throughout the probate process, we can advise you on your insurance requirements.
“We can help you understand the risks and liabilities you may face as an executor, and we can then help you find the specialist cover that meets all of your needs at the best price.”
To find out how we can help you, get in touch by calling 0208 290 9086 or emailing personal@anthonyjones.com.
