Anyone aged 18 or over can be an Executor – even if they stand to inherit everything in the Will.
The person who makes the Will can choose up to four Executors, so you may have to work with other people. You can find out more about choosing an Executor here.
What does an Executor of a Will do?
Executors perform a wide range of tasks which may include:
- Making sure that the Deceased’s property is safe – for example, ensuring that bank accounts are frozen or securing their physical property.
- Collecting together the person’s assets when they die – these may include money in bank accounts, savings, pensions, investments, property and money that other people owe the Deceased.
- Paying any bills or debts that the Deceased owes – together with any tax that is due.
- Distributing the estate – in accordance with the Will.
Executors can claim back any expenses that they incur from the estate, but unless they are a professional, they cannot charge a fee for their time.
Can I use a Lawyer?
If you have been appointed as an Executor and you’ve read through our guide to what’s involved, you may be feeling rather overwhelmed.
Fortunately you’ll be pleased to know that you can use a lawyer to help you.
Most Executors will use a Lawyer for advice on dealing with the estate – which will include advice on tax, selling the assets, dealing with the distribution of the estate and preparing estate accounts. You can appoint a Lawyer to provide advice ad-hoc (as and when you need it), or you can ask your Lawyer to handle administration of the entire estate.
The benefits of using a Lawyer
Lawyers qualified in handling estates and probate will be experienced in carrying out this type of work. This means that they will know the potential pitfalls, such as what steps you can take to avoid a claim being made by creditors down the line. Their experience can also mean that the estate is administered quicker than if completed by someone who has never gone through the process before.
Lawyers can also alleviate some of the burden of dealing with the estate, which can be a huge relief during a very difficult time.
We would always recommend using a lawyer in a number of circumstances, which include when:
- You are dealing with a substantial estate.
- The estate includes a business or agricultural property.
- The estate includes family trusts.
- The Deceased made substantial gifts to children under the age of 18.
- There are children involved who were born outside of marriage.
- The beneficiaries under the Will (or under the rules of intestacy) want to vary the Will (or their entitlement) to save inheritance tax.
- There is a possibility that the Will may be challenged (see ‘I’ve been left out of a Will!’ for a comprehensive list of reasons why a Will might be challenged).
- The Deceased had dependants and these were not provided for in the Will, or the provision made might be viewed as not reasonable. For example, the Deceased had three children and left their entire estate to only two of them.
- There may be untraced beneficiaries.
- The Will was homemade and/or has been badly drafted (see ‘When DIY Wills go wrong’ for more details).
- If you believe at any point that the estate may be insolvent (i.e. there is more money to pay out than the Deceased owned) – in this case you should seek professional advice immediately.
A lawyer can be hired to perform the complete administration of the estate, or to obtain the Grant of Probate, deal with the Land Registry if necessary and advise on any matters you are unsure about. The latter is a more economical way of dealing with probate.
A professional, such as a lawyer or accountant, can charge their professional fees to the estate. In other words, their fees can come out of the Deceased’s money. You should always get an estimate before instructing a professional to do work for you.
Can I change my mind about being an Executor?
Some people tell us they are ready to handle all aspects of the Deceased person’s estate by themselves, only to realise further down the line that the role can be very challenging – and unpaid! Being an Executor takes up a lot of your time and people don’t realise that this is a role for life. Even after the estate has been distributed, if claims are made in the future, you will have to deal with them.
If you accept the role but then change your mind:
- Before the person who asked you to be an Executor dies – ask them to choose someone else. They must change their Will.
- Straight after the person has died – speak to a legal professional. You can accept the role but then use a lawyer to help you perform your duties.
- After the person has died and you have already started to deal with the estate – speak to a legal professional. You cannot step down except in limited circumstances (such as a family emergency or ill health). You can however ask the legal professional to help you.
Acting as an Executor: what’s involved
If you are not using a Lawyer for the administration of the estate, the following steps must be taken. This list is intended to be a brief overview of the role of the Executor. It is not intended to be a step by step guide, nor is it exhaustive.
Make sure you keep meticulous records of what you have done as these may be needed if you are challenged at a later date:
- Register the death and notify the family Doctor.
- Order copies of the Death Certificate – if you are not using a lawyer, you’ll need a copy for each institution that is holding money for the Deceased.
- Send an original copy of the Death Certificate to all institutions holding money for the Deceased – this may include banks, building societies, insurance companies, pension companies and so on. Request that direct debits are cancelled, and ask for an account balance or investment value at the date of death.
- Take steps to stop the payment of salary, pensions and state benefits. You also need to inform credit card companies, TV licencing, utility companies etc of the death. Consider using the Tell Us Once service (gov.uk/tell-us-once) which lets you report the death to many Government departments at the same time. If you don’t use this service, you’ll need to contact HM Revenue and Customs (HMRC), the Department for Work and Pensions (DWP), the Passport Office (to cancel their British passport), the Driver and Vehicle Licensing Agency (DVLA) to cancel their driving licence and the local council to cancel any benefits, to see if they owe any Council Tax, to cancel their Blue Badge if they had one, to inform council housing services and to remove them from the electoral register.
- Contact any pension schemes to stop pension payments.
- If the Deceased owned property and this is now unoccupied property, secure it immediately and inform the insurance company. The policy is likely to be amended to show the estate as the insured, rather than the Deceased. The insurer may have conditions, such as that you check the condition of the property from time to time while it is unoccupied. Some insurers will not insure an empty property for a lengthy period of time so you may need to get a new policy.
- Stop post going to any unoccupied property as this could be used for fraud. You can do this by contacting the Bereavement Register (Tel: 020 7089 6403 or 0800 082 1230 – 24-hour automated registration service – www.thebereavementregister.org.uk).
- Find out where the Deceased’s latest Will is and obtain the original if possible or a copy if not. You’ll have to provide the death certificate and proof of ID. The other Executors, if there are any, will have to confirm (usually in writing) they are happy for you to have the Will.
- Make copies of the Will for the other Executors and beneficiaries, then put it away somewhere safe. Take care not to tamper with the Will in any way, such as adding staples or clips.
- Check the Will for funeral wishes and arrange the funeral. If the Deceased had a funeral plan, contact the provider straight away.
- Let friends, family and work colleagues know about the funeral. Consider placing an advert in local or national newspapers with the funeral details.
- When you receive an invoice for the funeral, you can take it to the Deceased’s bank with the death certificate, the Will and your ID. The bank will give you a cheque to pay the invoice, made out to the Funeral Director.
- Check to see if the deceased made any gifts in the 7 years before their death. This may affect their Inheritance Tax liability. See the latter part of our article ‘What happens if I give away my assets?’, under the heading ‘Inheritance tax: The 7 year rule’ for general information. This details the Inheritance Tax that may be payable on gifts made before a death, and the gifts that will be exempt.
- Go through the Deceased’s paperwork and look for any debts they may owe, or overpayments that they might have made. Contact the relevant organisations such as utilities, the local council and creditors to see if the deceased owed any money.
- Place a ‘statutory notice for creditors’ in the press. You need to allow at least two months for claims to be made. If you don’t do this, you and any other Executors will be held personally responsible for any claims that arise at a later date. If you put the notice in the press, any future claims are made against the beneficiaries rather than the Executors.
- Executors are responsible for valuing the estate. You will need to look at the total of everything they owned including property, money, personal possessions, savings, investments, pensions etc, less the total of everything they owed – including mortgages, loans, credit cards and other debts. You will need to arrange a professional valuation for land or property. For anything that is likely to be worth £500 or more, HMRC recommend obtaining a professional valuation.
- Pay any Inheritance Tax due – this needs to be done before applying for the Grant of Probate (see below). It may be necessary to arrange an Executor’s loan account with a bank to pay the inheritance tax liability. In some cases, the Deceased’s bank will agree to release the money to pay Inheritance Tax, without a loan being necessary.
- If the Will specifies a specific item of personal property (such as a painting) is to go to a particular person, you can usually do this before obtaining a Grant of Probate but ensure you value the items first.
- Apply for a Grant of Probate if one is necessary. This gives you the right to deal with the Deceased’s estate. A Grant of Probate won’t usually be necessary if everything passes to the surviving spouse or civil partner (for example, because all money was held in a joint account) and the estate does not contain land, property or shares. A Grant of Probate is usually needed if the estate contains land, property or shares unless, for example, the property is held as ‘beneficial joint tenants’ and there are no other assets. If the Deceased did not own any land, property or shares and their estate is worth less than £5,000, you can write to whoever is holding their money and ask whether they will pay it over to you without receiving a Grant of Probate. Speak to us if you would like advice on whether a Grant of Probate is needed.
- If there is no Will, the Will is not valid, the Will does not name any Executors or the Executors are unable/unwilling to act, you may instead need to apply for Letters of Administration. There are strict rules about who can be an Administrator and it is worth getting legal advice.
- If a Grant of Probate is needed, you will need to complete form PA1 and the relevant Inheritance Tax form. The completed forms should be sent to the Local Probate Registry with an official copy of the death certificate, the original Will, three copies of the original Will and the fee (currently £215).
- Open an estate/Executor’s account – this will hold all the deceased’s assets and ensure they do not get mixed up with your own finances. Talk to your bank, or the bank of the Deceased person, to see if this is available.
- You will need a number of office copies of the Grant of Probate to send to every institution that holds assets for the Deceased. When the assets are released, they must be paid into the estate account. The exception is anything that has been bequeathed specifically.
- Pay any Income Tax and Capital Gains tax. Make sure the Inland Revenue are satisfied that all taxes due to them have been paid.
- Pay any other debts and bills that may be due.
- You may need to deal with the Land Registry where property is involved. If the Deceased jointly owned property with a surviving spouse, fill in form DJP and send it to the Land Registry with a copy of the Death Certificate to remove the Deceased’s name from the register. If the Deceased was the sole owner, you’ll need to either transfer the property to a beneficiary using forms AP1/AS1 or if the property is to be sold, transfer it to the buyer. You’ll need a Lawyer’s help for this. If there is a property trust – for example, the Deceased left their share of the property in trust to their surviving partner for life, then to the children – you’ll also need a Lawyer to assist. Contact us for advice.
- Identify the beneficiaries. Sometimes these may not be named specifically – for example the Will might say ‘to whichever of my children are living at my death’. The Executor then has to find the Deceased’s children. Note that:
- Adopted children have the same rights as natural children, provided that the adoptive parent died after 10th September 1964.
- ‘Illegitimate’ children (unmarried parents) have the same rights as ‘legitimate’ children (married parents) if the Will was executed after 8th December 1986 or if the parent died without making a Will. If the Will was executed before that date, you should seek professional advice.
- It is important to make efforts to identify all of the beneficiaries, although Executors will not be held personally liable as long as they act in good faith and make reasonable enquiries if, for example, they distribute an estate without being aware of the existence of an adoption order, or of ‘illegitimate’ children.
- Executors must take reasonable steps to identify ‘lost beneficiaries’ – usually this includes advertising in a newspaper in the area where the person was last known to reside. Insurance cover should also be considered.
- Perform a bankruptcy check on each beneficiary by searching the Insolvency Register. If a beneficiary is bankrupt, they may not be entitled to receive their share of the estate. Instead, their inheritance will go to their trustee in bankruptcy. If you pay their share directly to them, the trustee may sue you personally on behalf of the beneficiary’s creditors.
- It is a good idea to wait for at least six months from the date of death before distributing the estate. This allows time for any claims to be made. Note that interest will be payable on cash legacies.
- If there are any gifts for children under 18, you will need to specify two trustees for the gift.
- Distribute the rest of the estate in accordance with the Will.
- Draw up estate accounts which detail all the assets that have been collected, any income that has accrued and any debts that have been paid. Each beneficiary should receive a copy of these accounts.
- Each beneficiary should also receive a R185 tax form for their share of the estate income.
There is some further guidance on specific aspects of managing the estate below.
Managing an estate: further guidance
Inheritance tax is payable on any sum over the Inheritance tax threshold.
Currently the individual inheritance tax allowance/threshold is £325,000.
However, there is no inheritance tax to pay on gifts that are left to a spouse, civil partner or charity.
If the Deceased was married or in a civil partnership and is the surviving spouse (i.e. their partner has already passed away), they may have inherited some or all of their partner’s inheritance tax allowance. This could give an allowance for Inheritance Tax purposes of up to £650,000.
You should get land or property valued, and it is advisable to get anything else worth £500 or more valued. You have to give HMRC a detailed account with valuations of the Deceased’s assets – and if this isn’t correct, you may have to pay penalties.
If the Deceased had a joint bank account (for example with a spouse or civil partner), the survivor will usually automatically own the funds in the account. You will need to provide the bank with the death certificate so that it can update its records.
However, this does depend on the purpose of the account and what was agreed when it was set up. For example, if there is an account hold jointly by a parent and child, it may not be appropriate for the child to be entitled to all funds on the parent’s death. The intention might have been to give the child access to the account for emergencies. If you have any doubt, seek professional advice.
Note that the Deceased person’s share of the joint account is included when valuing the estate for Inheritance Tax purposes. This may not be a 50/50 share. Again, if the account is held jointly by parent and child, it may be that all funds have been contributed by the parent, in which case the full value should be counted towards Inheritance Tax.
Jointly owned property
Where land or property is co-owned by the Deceased as ‘beneficial joint tenants’, both the Deceased and the surviving owner would have owned 100% of the property – there is no distinct share. On death, the surviving owner continues to own 100% of the property. The property does not therefore form part of the estate – but the Deceased person’s theoretical ‘share’ is included when calculating the value of the estate for Inheritance Tax purposes. If the surviving owner is the Deceased’s spouse or civil partner, there will be no Inheritance Tax to pay with regards to the property because of the spouse exemption. If, however, the surviving owner is somebody else – a son or daughter for example – the value of the Deceased’s share will be counted for Inheritance Tax purposes. Whether Inheritance Tax is due depends on the total value of the estate.
If the land or property is held as Tenants in Common, the Deceased was free to leave their share to whoever they chose and this will be passed under the terms of the Will (or under the laws of intestacy if there was no Will).
If the Deceased had a pension, check to see if any death benefits are payable and whether there is a pension for their surviving spouse, civil partner or children. You also need to check to see if the money will be paid directly to someone. If the money will not be paid directly to a beneficiary, you need to check and see if it will be included on the Inheritance Tax return.
Life insurance policies
If the Deceased had a life insurance policy, contact the insurer as soon as possible to see what the required steps are for a pay out to be made. Find out whether the money will be paid directly to someone named by the Deceased. If not, find out whether the amount needs to be included on the Inheritance Tax return.
For information about taxes, including Inheritance Tax, call the Probate, Inheritance Tax and Trusts and Deceased Estates Helpline: Tel: 0300 123 1072.
Get in touch
Our specialist lawyers can advise you on whether a Grant of Probate is necessary and we can obtain a Grant on your behalf for a competitive fixed fee. We can also deal with the Land Registry on your behalf and provide legal advice on other aspects of managing the estate.