Appointing executors… Who has the last word?

Year Published: 2012

An ‘executor’ is appointed in a will as the person who will administer the estate following death. There may simply be a sole executor or you could elect to have more.

The executors will step into the shoes of the person who made the will and has passed away i.e. the ‘testator’ and assume control of the assets which make up the estate.

Depending on various factors, the executors may need to obtain a ‘grant of probate’ of the will and of any codicils to the will before they can substantively administer the estate, concluding with distribution to the beneficiaries. A grant of probate is a formal document issued by the probate court which confirms the right of the executors to administer the estate. A codicil is a formal document which makes changes to a will.

The executors will probably have to file an inheritance tax return even if the estate is not taxable. Contrary to popular belief, beneficiaries can be appointed as executors. The role of executor is extremely important and can be difficult, and a testator should ideally only appoint a person or persons as executors in whom the testator has supreme confidence.

Some people prefer to appoint an independent person such as a professional to act as an executor. This can be for a number of reasons. The most typical are that there are no suitable relatives or friends who would be willing to take it on or who can be appointed or who would be able to work with each other and the beneficiaries of the estate. Sometimes a testator wishes to spare relatives who will be grieving the stress of sorting out the estate. Often professionals are appointed because the will contains complex trusts or there are other matters involved in the estate requiring professional expertise such as issues over the testator’s domicile or location of assets outside England and Wales or possibly the testator fears that a claim would be made on the estate by an excluded friend or relative.

In the recent High Court case of Khan v Crossland, Mr Crossland, a solicitor, had been appointed executor in the testator’s will. Meanwhile, the claimant and his sister, beneficiaries of the estate, had agreed between themselves how the estate was to be administered and asked Mr Crossland to step down. He refused, arguing that the testator had specifically appointed him and he had done nothing to warrant his removal. The relationship between Mr Crossland and the beneficiaries broke down. The claimant applied for the removal of Mr Crossland as executor under Section 116 of Senior Courts Act 1981 and this was granted. The finding by the court was that there were special circumstances in this case; including the breakdown of the relationship between the executor and beneficiaries, and that the beneficiaries were united in their wish to remove Mr Crossland and as to how the estate was to be administered.

Thus it seems that beneficiaries can now agree to seek the removal of an executor appointed by the testator and this may not just be a professional executor. In other words, the wishes of a testator about who administers his or her estate can be overridden.

This case has highlighted that ideally the careful choices we make about the appointment of each executor in our will should be documented, especially where those who might be considered the obvious candidates, for example, spouses, adult children or other close relatives, are not appointed or not the only executors appointed. It also highlights how what might seem a straightforward part of the will making process, may not be quite so straightforward after all!

For further information on any of the issues above, please contact a member of our Wills & Wealth Planning team on 01625 442100.

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