Do I have to accept an executorship?


Author: Helena Luckhurst


This article is taken from Helena Luckhurst’s blog The Wealth Lawyer UK

A good friend (or client) of yours has sadly passed away and has named you as an executor of his Will. What do you do now? Must you act?

It is always flattering to be trusted with such a responsible role. In some respects, you may feel morally obligated to act. However, it is always worth taking some time out to think carefully about what you are taking on before you say yes; something that a solicitor can help you do, as we regularly deal with estate administrations and know what they really entail.

The reality is that most estate administrations are a lot of hard work, which can put a strain on your work/family life if you decide to tackle matters yourself. Many take longer than a year to completely finish, some much longer, and it is rarely apparent from the outset how long it will take. That usually becomes clear once investigations into the assets and liabilities of the deceased have concluded, at which point you may be legally obliged to carry on acting as executor, even if you have changed your mind.

Many people are surprised to learn that if you are named as an executor, or as a trustee of a will trust, you do not have to accept. If the deceased was a client of yours and you are hoping to continue to manage their investments on behalf of their heirs, you may also have professional conduct/conflict issues if you accept the appointment. And does the Will contain a clause allowing you to charge for your time?

Here are a few more pointers to help you decide:

  • If you benefit from the estate, you may well want to act as executor so you have some control over the estate administration process. To help manage the time commitment, you can always ask a professional to assist you with the estate administration. Their fees will be payable from the estate. However, you will still have to sign off documents and take executorship decisions. The ultimate responsibility still lies with you.
  • Who are your co-executors? Who are the heirs and wider family members (who may not all be heirs)? Are relations harmonious or is there any potential for dispute? Is there any ambiguity in the Will or any doubt as to its validity as the last Will of the deceased? Could the estate be insolvent or face claims? Any of these issues are likely to make for a more challenging estate administration. What are the benefits to you of being involved?
  • If you are too busy, or living abroad, and it is not convenient for you to act but you would like to retain the ability to be involved, you can appoint someone as your attorney to take out the grant of probate on your behalf. However, if you are one of a few executors named, the other executors will have priority over your attorney to take out the grant.
  • If you may like to act at some point in future and other executors are named in the Will, you could have power (to act) reserved to you when an application is made for the grant.
  • If you are sure you don’t want to act as executor at any stage, make it clear from the outset that you intend to renounce your right to a grant. You must ensure that you take no steps to administer the estate or you may bar yourself from renouncing.

As you can see, accepting an executorship is not your only option by far. However, once you have accepted you cannot retire, so think carefully before you say ‘I do’!

Helena Luckhurst, Partner, Fladgate LLP (hluckhurst@fladgate.com)

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