What is an executor? How should I choose one for my Will?

Appointing an executor in your Will is a very important decision, and one that requires some serious thought. This makes that person (or persons) the only one who can legally apply for the Grant of Probate and distribute your assets in accordance with the terms of your Will.

Your executor should be someone who you know has the skill, patience and willingness to see through what is often a long and complicated legal process.

Above all you should be aware that what you are asking them to do involves taking on an enormous responsibility and is not something that should be entered into lightly.

Traditionally you would appoint your family solicitor or Will writer for this task. This is because of the legal complexities involved in the process, and also because they are (hopefully) detached enough from your family circumstances to carry out your wishes in an objective and non-emotional way.

Last year – according to figures released by the High Court of England and Wales – there was a sharp increase in the number of claims made against executors, and many people believe that this is due to an increase in the number of people choosing friends or colleagues as executors over professional probate practitioners and solicitors.

The problems stem from people not understanding their legal obligations properly and making poor judgement calls when trying to administer the estate in accordance with the Will.

We see these issues crop up when executors are also made beneficiaries (a situation fraught with legal questions, for obvious reasons); when there is an ongoing dispute between two or more beneficiaries (a lay person often makes the mistake of appearing to favour one over the other); and, most commonly, when a certain amount of discretion has been given to the executor in the terms of the Will.

In these circumstances the executor, even with the best of intentions, can often make a mistake and leave themselves open to a claim of breach of fiduciary duty.

This claim is usually brought by a disgruntled beneficiary, often under the advice of a contentious probate lawyer.

To avoid this happening to your estate you need to make sure that you think carefully about the person you appoint as your executor.

  • Do they have the right skills, both professionally and personally, to manage this process for you?

  • What relationships do they – and have they – had with the beneficiaries of your Will?

  • Are you intending to make them a beneficiary too?

  • Is there any potential conflict of interest there?

  • Are they really willing to be responsible for undertaking such a potentially onerous task?

  • They might say yes now but can you see them sticking through it all when things get difficult?

  • Do they have the time?

People with young families and busy careers might struggle to do things thoroughly. Also, remember that the person you nominate today will hopefully not be asked to take on the role of executor for many years to come – are their circumstances still likely to be the same?

If you choose to go down this route, rather than appointing a qualified legal professional as your executor, make sure that you consider these questions carefully and remember to let them know that they are legally entitled to seek professional help themselves if they feel that it is all too much for them.

Remember, nobody wants to be dragged into a long and arduous contentious probate case. The decision you make today about who to nominate as your executor can have big consequences in the future for your friends, family and loved ones.

Think carefully about who you choose and make sure that you are making the right decision for the right reasons.

If you would like to discuss this in more detail please contact a member of our Will's Team today.