Last Will and Testament - what are Executors?
Janet Cribb
Who should I appoint?
It is common practice, and we think best practice, to appoint close family or friends. You may say, ‘but they don’t know anything about it and wouldn’t know what to do’.
Consider the following before we move on.
- A professional, such as a bank or solicitor, is entitled by law to charge for services without reference to the beneficiaries and may charge the ‘going rate’ for items such as letters to utilities which could easily be done by family.
- Your beneficiaries will have no control at all over what is happening and the time taken; this is a source of frustration to many people awaiting money from an estate.
- Chattels may be distributed willy nilly by a stranger.
- Your appointed executors may employ a solicitor to do some of the work whilst retaining control themselves. This means that they can fire someone who is not doing the job properly and go elsewhere or choose to finish the job without help. It also means that they have some control over the charges.
- The Probate Offices are geared up to helping personal representatives and will do all they can to assist.
- It is unlikely that professional executors will have any personal interest in the estate and may sell items against the wishes of the family.
- You can leave a letter to your executors asking them to keep the appointment themselves. Give them the name of a person you would prefer them to use if they need help.
- The nice man or lady who you spoke to about your Will may not be the person who handles the estate, they may have moved on or retired from their job and a stranger who knows nothing about you will be charged with probate.
Upon the death of one of two people who are married to each other, or in a registered Civil partnership, probate will be quite straightforward because there is no tax to pay between husband and wife or civil partners. This does not apply to common law relationships in the UK or to unregistered civil partnerships. The rules for this will vary in detail from country to country, but they will be broadly similar. For many couples, the surviving partner can deal with most of what has to be done without too much trouble. He or she is likely to be the sole Executor on the first death and it may simply be a matter of informing the bank of a name change on the account and making a claim from an Insurance company. There is no need to probate jointly held assets, they become the sole property of the surviving spouse/partner. But, sometimes a home is owned by one of the two people, a common situation many years ago. In that case the Will must go to Probate in order to change the ownership of the property. It is worth pointing out here that joint bank accounts may be, and often are, frozen so that a surviving spouse or partner will not be able to use his or her card or cheque book until the bank decides it is safe for them to release the money. My advice is to have independent accounts so that nobody gets strapped for cash. This applies both ways, even though only one of the two is earning; the account may still be frozen if either dies.
If the death is of the surviving spouse/partner and the beneficiaries are children, charities and others then the situation is quite different. The Grant of Probate must be shown together with a certified copy of the Last Will and Testament (the original is kept at the Probate Office and archived for 50 years) to the bank. The executors will be made signatories to a trustee account, jointly or jointly and severally; they will have to decide at the outset which signing arrangements will apply. The cash is transferred from the testator’s account (which is then closed) into the Trustees account.
The Executors first job is to arrange the funeral, but this may be done instead by the family if the Executor is not an immediate family member. It is very helpful if the Testator has had the foresight to use one of the many pre-paid funeral plans available (click here to read more about the advantages of prepaid funerals). If he or she hasn’t done this then the Executors must pay the funeral director from the money in the Trustee account. Unless there is a serious shortage of funds the bank will usually allow this money to be paid without too much fuss, even before the account is closed. After that and within 6 months (in most countries) the Executor must deal with administration of the estate. Firstly the Executor must call personally at the bank to close the bank account and open another one in the name of the Trustees (See: Last Will and Testament - What are Trustees?). calling in any money owed to the testator, paying outstanding bills and distributing the remaining money to the beneficiaries, or giving it to the Trustees for safekeeping if the beneficiaries will be entitled to it only when they reach 18, 21 or 25, whichever age is specified in the Will. One of the first bills to be paid must be the tax bill, if there is one! Other bills to pay will be utilities, credit cards, charge cards etc.
This sounds quite straightforward, and indeed it is if the Testator left an up-to-date record of where everything can be found. We have always encouraged people to fill in an asset sheet to go with the Will, but there is an electronic one waiting for you once you have registered with WheresTheWill. The huge advantage of using an on-line document is that it can be changed at any time by logging in to your account; we will remind you to keep it current once you are registered. It is also instantly accessible to your executors after your death, no need to wait for the Will. You can print it if you want to, a paper record with the Will is certainly better than nothing, but inevitably it will date. Your Executors will count their blessings if you leave your records in good order. There is no need to mention values at all; the most important information is Insurance policy numbers and the company name, account numbers, names of banks and other financial institutions with whom you have investments or cash deposits, and the name of the account; also a list of real estate if that is a part of your portfolio. There are large amounts of money not claimed, particularly from insurance companies, because executors are unaware of the existence of accounts and policies.
Chattels will be valued for probate purposes (you can also leave a record of chattels once you have registered with us, WheresTheWill.com) What are Chattels? (see: Goods and Chattels). A good start is your household insurance valuation sheet, although it will not give the whole picture.
The people or organisations that had any dealings with the Testator must be notified of the death. The doctor will probably already know, but a dentist and any other health care providers such as physiotherapist, chiropodist, etc. Clubs, organisations, insurance companies, the Department of Work and Pensions (or the equivalent where you are) for any state benefits that were being paid, charities who might be expecting a regular donation, and anyone else with whom the testator was in touch for any reason, should be informed. Don’t forget that the testator’s account is frozen from the minute the bank knows of the death, and the account closed once the grant of probate is presented. Standing orders, direct debits and regular payments for loans etc will not be paid, nor will any cheques that have not been presented. If the Testator was well organised then this job should be easy enough, but if he or she was not it might take some time to find out who should be notified. It could be that the Executor will have to work from the post that is delivered in the Testator’s name and notify people as letters come in. A quick phone call or visit to a web-site will serve the purpose in most cases. A death certificate is only needed usually where there is money involved.
The executor is accountable, so he must keep a clear record of the financial transactions that take place. For straightforward estates a simple Excel spreadsheet will suffice. If things are complicated then it might be advisable to employ an accountant to do the record keeping and accounts. Either way, the final visit to the probate office will be to present the estate accounts for confirmation that the estate has been administered correctly and any tax due has been paid.
Legacies can be paid when the money is available, but clearly the residuary beneficiaries must wait until the accounts are approved and the executor has a figure from which to work. The value of the estate after all expenses have been met and legacies paid will give the figure required for the Residuary Estate. When the Residue has been handed over the Executors job is finished and he or she can draw a line under the accounts. They should not be destroyed but kept safely somewhere for future reference should any queries arise later.
There are some very good self-help books available through Amazon, the Which paperbacks (‘Which’ is the Consumers Association in England) are probably the best available anywhere. They are What to do When Someone Dies and Wills and Probate. The modus operandii of Probate Offices for common law countries is pretty much the same wherever you are. You will also find some very helpful leaflets on the STEP website.
Click here for the STEP website
Useful books from Amazon Australia
Useful books from Amazon.UK
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Janet Cribb
Channel: Wills & Living Trusts |
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