What Are The Challenges Of Acting As An Executor?
When you decide to take on the probate work yourself you are facing two major challenges: a personal challenge and a legal challenge.
If you are an Executor under a will, you have two options:
Option 1: Undertake the entire process yourself
Option 2: Hire a probate lawyer to undertake the task on your behalf
The personal challenge.
The job of an executor or administrator brings with it a serious personal responsibility. You will almost certainly be dealing with the affairs of someone who was either a relative or a good friend and the people entitled to the estate (called the beneficiaries i.e. those who stand to benefit from the estate) will almost certainly be friends or relatives.
You will naturally want to do a good job and will try and act promptly and efficiently but if you are slow or make a mistake you will have to face the music with those relatives and friends.
When someone has died emotions can be very volatile and you may find yourself in the firing line whether you are doing a decent job or not. A word of caution here – try not to give any firm indication of how long it will take to administer the estate. If for any reason you get held up people are very quick to remember what you said about the time it would take!
It is very likely that as well as being an executor or administrator you may well be a beneficiary of the estate yourself. This is all the more reason why you will want to do a good job, but it can also lead to difficulties where there might be a conflict of interests or a dispute in the estate and you may have to ‘take sides’. It is not always easy to be seen to be acting fairly when you have vested interest.
Of course, the most serious challenge is that if you do make a mistake you will be personally liable and this could prove very costly. That is one of the reasons why it is always sensible to seek legal help with probate.
The legal challenge.
In every case, as the Executor or Administrator you have to sign a legal document which is called the Statement of Truth (this replaced the Oath). This Statement of Truth is a document which you have to sign confirming that the information is true and that you will administer the estate in accordance with the law.
There are several parts of this phrase which require explanation but for now the crucial part is ‘according to law’. In layman’s terms what this means is that you promise that the work you do will be done according to the law. It follows therefore that you are expected to know the law.
If your work comes under scrutiny, there will be no room for you to say that you couldn’t be expected to know the law. You will not be able to say but I am not a lawyer and expect to be treated leniently. Your work will be judged by the same standard expected of a reasonably competent professional who knows the law and if you fail that test you may find yourself personally liable for your mistake.
Do I have a choice about being an executor or an administrator?
The simple answer is yes.
You may have many questions or doubts about doing the job. You might no longer feel close to that person or you may have fallen out, you might simply be too busy, you may not feel well enough, your own personal circumstances may have changed since you first agreed, or upon further reflection you may have decided that you simply do not want the responsibility.
No matter what your reason, you cannot be legally obliged to carry out the work of either an executor or an administrator.
Your choices if you do not want to do the work
If you have been named in a will as an executor and don’t want to do the work personally you have several choices. If you are one of more than one executor named in the will you can step aside and let the other executor or executors do the work if they are willing.
In this case you can request that ‘power be reserved’ to you and then the other executor/s carry on with the work but you retain your power to step back into the picture if for any reason it is necessary to do so. Having power reserved to you is a little bit like being on the substitute’s bench – you are still part of the team and can come on and take part if needed.
Another choice is for you (and your co-executors if there are more than one) to employ a professional to do the work on your behalf. Their fees are a legitimate deduction from the estate, which means that they are paid out of the assets of the deceased and not by the executor/s personally.
Alternatively, if you neither want to do the work personally nor even have the responsibility of working with a professional you can renounce probate altogether. If you renounce that is an end of the matter as far as you are concerned and you have no further involvement or responsibility. This does not mean that the affairs of the deceased are left in limbo because other people are then entitled to apply for a grant to the estate and who these people are will depend upon the circumstances of each particular case.
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