Probate – “What if I don’t want to be an executor?”

Probate – “What if I don’t want to be an executor?”

There are several routes you can go down:

Power of Attorney – The first one being filling out a form so that someone else can act as executor on your behalf. This is a special power of attorney and our members can help you organise this.

Renunciation – If you do not want someone else to act for you and you do not want to be the executor and have not already done anything to act like you are the executor you can renounce. Our members can help you draft the necessary form to do this.

Power reserved – The final option and a common one is to have what’s termed “Power Reserved.” This means that you won’t act as executor and leave it to the other executors to do. A common situation is where a brother and two sisters are appointed as executors and they agree that just one of the sisters will apply for the grant of probate. The Executors not applying can then apply in the future if they want through a separate application. Our members can help and advise if this may be applicable.

Should I appoint a professional executor in the first place?

The answer is you don’t have to but, depending on your circumstances, it might make sense.

The reasons why clients want to employ professional executors differ in each case but there are some common trends:

Relieving the responsibility – One of the most frequently given reasons is that clients wish to allow their family to grieve rather than to be burdened with the responsibility of administering the financial affairs of a deceased loved one. Some of us are not natural organisers and don’t cope well in a crisis. It can be of great comfort for a Will maker, especially, I find, ones who are already ill and have gauged that their families are going to struggle with loss, to be able to nominate a professional to relieve the family of what they predict will be an unwelcome burden at a stressful and emotional time.

Experts for specialist advice – Sometimes clients appoint professional executors because they are accustomed to delegating their complex affairs and have lifelong (or career long) relationships with their advisors. Complex affairs can mean cross-border matters (such as domicile or overseas assets), can be in terms of tax (whether it be the taxation of an individual or an individual’s interest in a business) or because of the need to ensure that a business will continue to operate post the death of a key member. Professional advisers can be best placed to act as executors in these circumstances.

Choice of firm – On a similar vein, if a Will maker is aware that their (non-professional) executors will need to appoint professionals to provide advice, a Will maker ensures that their own choice of professional is instructed when they appoint their own professional executor. This can be an important motivator.

Continuity of advice – If a Will maker’s affairs are less complex on the whole but there is an area of complexity for which a Will maker has always sought advice, professional executors can be appointed to deal with these matters, with the remainder of the deceased’s affairs being left for the family to manage. Typical examples of this restricted executor role involve executors appointed specifically to deal with digital assets, literary estate, intellectual property and/or assets abroad. Will makers can also appoint separate executors to take over, on their death, the administration of an estate for which they themselves are acting as an executor.

Trusts – Where a trust is involved, a Will maker will often opt to have a professional executor (and trustee). There may be ongoing family trusts or trusts for minors or vulnerable beneficiaries (which can continue long after the remainder of the estate has been settled). Many trusts are simple and require little professional input but where matters are more involved, a professional trustee in the form of a trust corporation can assist with longevity and continuity.

Acting as a neutral party – Whether an estate is complex or not, if a Will maker knows that there is likely to be conflict following their death, a professional executor can be appointed to act as an impartial or neutral party. A professional executor can make decisions objectively and at a necessary distance from emotional complications. Families can have long-standing disputes or a Will maker may be aware that a dispute is likely to arise on their death, whether in relation to 1975 Act claims, claims of lack of capacity, undue influence or because, for example, an executor has been directed to take an action under the terms of the Will that is likely to prove unpopular.

Costs – Its very common for executors to instruct lawyers, such as one of our members, to act for them in dealing with probate. Here is a tip from one our members Stuart Adams when choosing a lawyer to deal with probate for you: ask them how they propose to charge to deal with the estate. This may be on a time spent basis a fixed fee or percentage or mix of both. Make a note of what they say and ask for confirmation in writing.

If you would like more information on any of the issues raised in our blog, please do not hesitate to contact one of members who specialises in Probate.

David Sinclair

David Sinclair

SFE Chairman

David, Chairman of SFE, runs a practice called Acorn Solicitors in Somerset that he set up in 2009 that specialises in Wills, Probate, Conveyancing and Elderly Client Matters. “As part of my role in running a local law firm I am passionate about raising funds for local charities and supporting our local economy. It’s a privilege to work for older clients and I love hearing their stories and their wisdom.”

Ruth Pyatt

Ruth Pyatt

Senior Associate at Birketts

Ruth Pyatt is a Senior Associate in the Wills and Advisory Team of Birketts. She is a fully accredited member of SFE and a STEP Technician.  She is based in the Norwich Office of Birketts but also works out of Ipswich, Cambridge and Chelmsford.  Ruth advises on elderly affairs as well as having experience in contentious and non-contentious estates administration and trust work. Birketts is a full service top 100 UK law firm and their Private Client Team was winner of ‘Private Client Firm (Regional) of the Year’ at The Legal 500 UK 2017 Awards.