21 May 2020
09 Jul 2019
Damian Lines TEP, Partner and Head of our Wills, Trusts and Probate department answers:
“It depends on whether you have made a Will.
Let’s look at what happens if there is no Will. In this case, the law (not you!) decides who inherits your assets. This might not be who you would expect, but whoever this is can apply to the Court for a grant of Letters of Administration to deal with your estate. If there is more than one person entitled, often none of them have any more right than another – just because one is older does not give them priority.
Where there is a Will, then the Will usually names either one or more executors. The executor has the first right to deal with the affairs of the deceased person. They can (but do not have to) be a solicitor. They can be family, friends; even a beneficiary can be an executor. However, there is a heavy burden placed on an executor and a personal responsibility to see the job through. It makes choosing an executor a very important choice.
I have a few points to consider when deciding who you want to act:
- An executor should be someone that you trust absolutely to follow your wishes, and comply with the complex law governing the administration of an estate. There is a great deal of responsibility, and even more power. There are regular stories in the press about unscrupulous executors acting less than honestly in their dealings.
- In acting, an executor will need to separate their own self-interest from the best interests of the estate. This is something that family members can sometimes find difficult – especially where, say, only two of three children are appointed. Care should be taken to ensure that the working relationship between them will allow for things to be dealt with efficiently.
- Many couples appoint only the survivor, without a ‘plan B’. If one spouse dies, the other may be too upset or unwell to deal with matters. I would suggest always considering another person to act – just in case.
Often I am asked whether I can act as an executor. Yes, I can and often do if the circumstances mean that it is right.
The appointment of an executor is perhaps one of the most important aspects of Will-making, meaning that receiving expert advice is an absolute must.”
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