Being an Executor or Administrator of a Will

A will is made to ensure that the testator (the writer of the will) can detail how and where their assets should be distributed in the event of their death. The executor of the will has the duty of carrying out the instructions of the will. If no executor is named in the will, this task will be performed by an administrator. The duties required of both positions are very similar, though there are some differences with regards to the terminology used for both.

The following guide offers information on the responsibilities and duties of an executor of a will and an administrator of a will, along with the ways in which both roles are fulfilled and governed.

What is the difference between an executor and an administrator of a will?

When a valid will is created, a Personal Representative will act as the executor of the will. If a will was not created, the Personal Representative becomes known as an administrator of the will. The Personal Representative is the individual who has the responsibility of managing the deceased person's assets and estate. This includes considerations such as property, financial investments and savings, debts and possessions. The Personal Representative is legally entitled to and responsible for the administration of the estate on behalf of the testator.

The role of executor or administrator of a will is a highly responsible one and the person chosen for this position should be thoroughly considered before being named. Any mistakes that are made with the management of the deceased's estate can be the liability of the executor or administrator, and as such, they can be held accountable for such errors.

Who can be an executor?

If a valid will was left, it is likely that an executor will have been named, and they will assume the responsibility for managing the deceased's estate and affairs. The executor must be willing and capable to complete this duty and must have the mental capacity to reliably carry out the role. A will may name between one and four executors, and most commonly, two people are tasked with the responsibility.

To be eligible to be an executor of a will, a person must be above 18 years old and of sound mind. Most testators name a trusted friend or relative. The decision is usually based upon who the testator believes they can trust to carry out their wishes fully. The executor of a will is often a beneficiary also.

In instances where there are multiple executors, joint responsibility for the administration of the estate is given. In order to maintain strong communication and steady management of the affairs, it is normal for one executor to assume a leading role. The executors may choose to hire a solicitor specialising in wills in order to assist them with paperwork and to provide legal advice as and when required.

If a valid will has not been created or the named executors are not prepared to carry out the role, a beneficiary of the will can apply to act as the administrator of the estate or a relative of the deceased may also apply. If a decision cannot be made as to the most suitable administrator, the priority will be given to the deceased's closest relative.

Applying for the Grant of Probate

Unless the estate is particularly small, an application to the Probate Registry will normally be required to obtain a ‘grant of probate' (for an executor) or ‘letters of administration' (for an administrator of the will). These documents provide the executors or administrators with the legal authority to deal with the estate. Furthermore, the documents give authorisation to external organisations such as banks and insurance companies to liaise with the executors or administrators. Both documents are referred to as a 'grant of representation'.

It is usual practice for one or more of the executors of the will to make the application for the grant of probate. Alternatively, in cases where no will was made, a relative or beneficiary can make the application for the letters of administration. The application requires the completion and submission of required forms along with submission of the will, death certificate, paperwork relating to inheritance tax and a nominal fee. A solicitor can support applicants in completing and providing the relevant documentation. If the probate registry has any queries, they may request an interview with the applicant.

Duties of the Executor or Administrator of a Will

The duties of an executor or administrator of a will revolve around the distribution and management of the deceased person's estate. There are a number of administration and tax-related matters that must be completed in the course of either role. Some of the main duties include:

Legal duties

• Assessing and confirming the validity of the will
• Making an application for a Grant of Responsibility
• Assessing and managing all claims made against the estate
• Managing any modification requests that are made by any beneficiaries of the will
• Establishing and managing any trusts

Tax Duties

• Determining the amount of inheritance tax that needs to be paid, if any
• Completing and submitting the inheritance tax forms
• Gaining confirmation that inheritance tax has been paid or that no inheritance tax is due from HM Revenue and Customs
• Preparing an income tax return from 6th April to the day of the death and paying any taxes due
• Making any Capital Gains Tax payments that are due
• Taking care of any documents that need to be passed on to the deceased's spouse, if there are any.

Administrative duties

• Confirm all assets and debts of the estate
• Locating any missing beneficiaries
• Locating any unidentified assets of the estate
• Arranging the sale or transfer or property if needed
• Arranging the transfer of jointly held assets to the survivor if needed
• Distributing assets to beneficiaries
• Setting up trusts in order to safeguard the inheritance of any minor beneficiaries.

Can an executor or administrator be held accountable for errors?

Acting as an executor or administrator of a will can be a complex and time-consuming undertaking. Both roles can lead to the individual being held personally accountable and financially liable for any losses incurred through a breach in their responsibilities or duties. Even if a mistake was made accidentally or in good faith by the executor or administrator, legal action might be taken against them. Some examples of such errors include:

• Failure to pay off debts of the deceased
• Not paying any taxes that are due such as inheritance and capital gains tax
• Inability to correctly identify and distribute assets to beneficiaries
• Failing to distribute assets to those who make a successful claim against the estate

Relatives and dependants of the deceased are given a period of 6 months to make a claim following the issue of the grant of representation. The creditors of the deceased can make a claim against the executor or administrator for a period of up to 12 years following the death. It is vital that anyone acting in either role seeks the support and advice of a solicitor for any areas of concern or query to avoid potentially costly errors.