Do I have to act as an executor if named in a will?
If you have been named as an executor in someone’s will, you may be wondering what this means and if you can have power reserved.
What is an executor?
Detailing exactly what an executor is and does could be an article in itself. However, in very simple terms, an executor is the person who is legally responsible for carrying out the instructions detailed in someone’s will and handling the distribution of their estate. The estate is everything a person owns and includes their property, possessions, investments and money.
Whilst fairly common, it is also recommended, for the deceased to have appointed more than one person as executor.
This being the case, all executors will need to work together to deal with the estate, although it is important to note that only four executors can be named on the Grant of Probate.
How is an executor chosen?
A person making a will usually decides to appoint people they trust to act as executors and deal with their estate on their death. Executors are usually family members or close friends.
Do I have to be an executor?
There is no legal obligation for the person named as executor to take on the role. The role holds a substantial amount of responsibility, with several duties which must be complied with, and therefore individuals should carefully consider whether they do or do not want to be an executor.
There will of course be circumstances where one or more of the named executors are unable or unwilling to act. There are many reasons why this might be, for example: –
- They may reside in a different country meaning it is not practical for them to be an active executor
- They may be in poor health meaning the role would be too much of a burden
- They may simply feel that the role is too emotionally difficult to carry out, following the death of a loved one
- They may lack mental capacity
- They may have died
Whatever the reason may be (and of course, there may be no specific reason), the named executors have the option to either renounce the role entirely or opt to have power reserved to them.
What is Power Reserved?
Power reserved means the executor will not be actively involved in the administration of the estate, at that present time. They do however reserve the right to become actively involved, should they wish, in the future.
They have not completely given up their power but simply agree to the other named executors administering the estate without them in the meantime. Those remaining will apply for the Grant of Probate on which it is noted that the non-acting executor has power reserved to them. They are then able to administer the estate as necessary and the non-acting executor is not required for the process, until the point they wish to become involved.
What if the non-acting executor wishes to administer the estate at a later date?
Circumstances may change and the executor initially not named on the Grant of Probate may have relocated to the same country, another executor may have passed away, or the acting executors have not administrated the estate correctly.
In this case, the non-acting Executor, having had power reserved to them, retained the right to take a more active role later under the Grant of Probate. All they would need to do is make a further application to the Probate Registry, to obtain a grant of Double Probate.
Once the Grant of Double Probate has been obtained, any documentation that is required in relation to administering the estate will need to be signed by all the executors.
Does the executor with power reserved still have any liabilities?
If the executor has power reserved, a claim would not normally be made against them as they would have limited liability. Any claims are usually made against the individual executors causing the breach. However, once a Grant of Double Probate has been obtained, then they have the same duties and liabilities as those named on the original Grant of Probate.
If you have been named as an executor and have concerns about being able to act, or you have concerns about another named executor being unable or unwilling to act with you, you should seek further legal advice to consider the options available to you.
The experienced wills, trusts and probate team at GA Solicitors in Plymouth is here to help you through this process.
For a no-obligation initial consultation on obtaining a Grant of Probate or to know more about GA’s Probate Service call the team today on 01752 203500. You can also contact me directly via catherine.bailey@GAsolicitors.com or use the online contact form.
For a useful guide on probate and the steps you need to take, please click here.
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