What an executor can and cannot do
The primary duty of executors is to the beneficiaries by carrying out the wishes of the deceased as set out in their will. Executors can act together or alone, but an executor cannot go against the terms of the will, breach their fiduciary duty, fail to act, self-deal, embezzle or harm the estate through neglect.
Common tasks of an executor
The tasks usually carried out by an executor of a will are:
- registering the death
- locating the original will
- arranging the funeral if no one else does
- taking responsibility for property
- notifying banks, DWP and any other financial institutions of the death
- valuing the estate
- completion and submission of inheritance tax forms to HMRC
- paying any Inheritance Tax due on the estate
- applying for probate
- distributing the estate to the beneficiaries
All these various tasks can involve complexities outside of the scope of this article.
What an executor cannot do
Undertaking the role of an executor comes with responsibility. Executors must not:
- go against the terms of the will
- breach their fiduciary duty to the beneficiaries
- fail to act
- embezzle (steal money) or assets from the estate
- intentionally (or unintentionally through neglect) harm the estate
It is essential that executors understand that they must give effect to the terms of the will. They cannot change or vary the terms just because it seems appropriate or fair that they do so. Wills can be varied using a Deed of Variation but that requires the agreement of anyone being affected by the proposed change.
The primary duty of executors is to the beneficiaries, i.e. those people who inherit under the will. If the executors act in a way or fail to act in a way that causes financial loss to the beneficiaries, the executors may be directly liable for their losses. This duty is owed equally to all beneficiaries under the will.
Can one executor act without the other?
If more than one executor is named in a will, all named executors are expected to act together in the administration of the estate and are all expected to apply for probate.
However, if one or more executors does not wish to act or cannot act (for instance, due to illness) then that executor can renounce their role by signing a Deed of Renunciation, removing themselves as an executor and the remaining executor(s) can apply for probate without them.
Alternatively, the remaining executor(s) can apply for probate with ‘power reserved’ to the executor who will not or cannot act. This does not require a Deed of Renunciation and grants probate to the remaining executor(s) while reserving the right of the other executor to act in the future should they wish to.
Things can get complicated if an executor wishes to remove themselves as executor having already involved themselves in the administration of the estate. If this happens, you should take legal advice on what to do.
Can an executor act alone?
It is perfectly legal for a will to appoint only one executor. When this happens, that executor can, of course, act alone. It can create some awkward situations though, for instance when a trust is created in the will. Although not strictly necessary, most trusts require two trustees and, where there isn’t a second executor a second trustee will need to be appointed. If this happens, you will need to take legal advice.
Can an executor act independently of other executors?
When two or more executors are appointed, they are supposed to take decisions together, but one of them could, in a practical sense, do more than the others if all agree. The other less-active executor(s) remain liable for any acts or omissions of the more active executor and so must ensure that they are aware of everything that the more active executor is doing. If an executor instructs solicitors for instance, it is standard practice for the solicitor to state clearly that they consider themselves to be acting for ALL the executors.
Can an executor change a will?
No, an executor cannot decide to change a will however reasonable the change may seem. The executors have a primary duty to give effect to the terms of the will. However, it is possible for a Deed of Variation to be entered into to vary the terms of the will, but this can only happen if all the affected beneficiaries agree.
For instance, a will might leave a legacy of £10,000 to A, but A chooses to vary the terms of the legacy and have the money given equally to his two children X and Y. So long as this is done within 2 years from the date of death, the change is viewed by HMRC (for tax purposes) as having been ‘written back’ into the will, i.e. as if the will had always been in those terms.
Can an executor witness a will?
Yes, an executor can witness a will, as long as they are not also a beneficiary.
Can the executor benefit from a will?
Yes, an executor can also be a beneficiary under the same will so long as they were not also one of the two witnesses to the signing of the will. This is often the case where a spouse or civil partner are named as executor and are also the main or sole beneficiary.
Can an executor remove a beneficiary?
No, an executor cannot change the will themselves and so do not have the power to remove a beneficiary or refuse to pay them their inheritance, regardless of why they feel such a step might be appropriate. If an executor fails to pay a beneficiary, they are personally liable for the beneficiary’s loss.
Can the executor of a will be changed?
Yes, an executor named in a will can be changed. This can be done by adding a ‘codicil’ to your original will. This is a written amendment that you can use to change the terms of your will without having to write a new one. Codicils can be used to change the executor of a will or revise any other terms as needed and, if you are using a solicitor to write the codicil, they are usually much cheaper than writing a whole new will.
Can you change an executor after death?
No, you cannot change an executor of a will after death. However, the executors named in a will may change in that they can refuse to act or ‘renounce’ their role and probate can be applied for by any remaining executors. If there is only one named executor and they refuse to or cannot act, then there will be no executors to prove the will and apply for probate. In those circumstances, any beneficiary of the will could apply for ‘Letters of Administration with will annexed’.
What can an executor do with property?
Yes, an executor is allowed to sell property owned by the deceased, as long as there are no surviving joint owners of the property or clauses in the will that stop them from selling the property.
If you would like any help or advice on what an executor can or can’t do, or on any issues relating to probate or making a Will, please do not hesitate to contact a member of our Wills, Trusts and Probate Team or get in touch on 020 8492 2290.