A guide for lay executors

Being an executor is a position of trust and responsibility. An executor is legally responsible for the money, property, and possessions of the deceased (estate) and to carry out the wishes of the deceased as set out in the will. An executor’s duties include:

• legal duties to apply for probate or a grant of administration;
• tax duties to pay Inheritance Tax, Income Tax and Capital Gains Tax etc; and
• estate administration duties to value and sell assets, settle debts, and distribute the estate to the beneficiaries.

An executor is accountable to the beneficiaries and can be held personally liable for any financial losses that result from their mistakes. Use the checklist at the end of this guide for more information about the tasks you will need to carry out as executor and in what order.

If the deceased made a will, the executor(s) will usually be named in it along with any beneficiaries. Up to four executors can be named in a will. This could include professional executors, such as an accountant or solicitor, and/or lay executors who are friends or family members of the deceased.

Sometimes, seeing the will may be the first time you discover you have been appointed as an executor. If more than one executor is appointed, they must make decisions about the estate jointly, unless they formally agree otherwise.

If you can’t find a will, the rules of intestacy will apply and normally the closest living relative, such as a spouse, children or parents of the deceased will need to apply to the Probate Court for a grant of administration. They will then become the appointed Administrator of the estate.

Use this government tool to find out who might be entitled to a share of someone’s money, property and possessions if they die without making a will. You can also contact an accredited probate practitioner for advice. You can find an ICAEW probate practitioner through the ICAEW probate register.

Just because you have been named in a will as an executor does not mean you have to act or apply for probate yourself. If you don’t wish to accept the appointment, you have two options: 

• renounce your role and give up your right to be an executor entirely; or
• reserve power to step back from the role now but take it up again later if you wish.

If you decide to renounce your role, this should be done as soon as possible, and you should avoid becoming involved in the estate administration. To renounce your role as executor you need to complete a form and send it to the Probate Registry. This will not affect any entitlement you may have to money or assets under the will if you are also a beneficiary of the estate.

If there is more than one executor, one of the other named executors can carry out the duty. If you are the only named executor, you can appoint someone else to apply for probate. This could be another beneficiary or a professional, such as any accredited probate practitioner. However, professional providers will charge fees for their services. There is more information about renunciation on the UK Government website.

Probate is the legal process of administering and distributing a person’s assets, such as their property, money, and possessions after their death. It is often referred to more generally as estate administration. In most cases, you must not distribute any assets until you have the grant of probate or letters of administration.

When you apply for the grant of probate, you obtain the legal authority to deal with an estate. Once probate is granted you can start to deal with the financial aspects of the estate.

You can usually apply to the Probate Registry online for the grant of probate, but they will ask for some original documents such as the will to be sent through the post. You can find further information about applying for probate on the UK Government website.

Not necessarily. You may not need to apply for probate if:

• all shares and money in bank accounts are owned jointly by another living person;
• land or property is owned as ‘joint tenants’ which passes to the surviving owner;
  or
• the estate only holds savings and / or personal belongings.

Many banks, building societies and insurance companies will release funds from accounts without a grant of probate up to a certain threshold at their discretion. This can be between £5,000 and £20,000 depending on the bank.

However, for any property to be sold, probate is required so that the executor or administrator can legally sign the deeds.

Generally, an estate worth more than £10,000, or including property, requires probate unless the circumstances listed above apply.

If you are an executor, you can decide to carry some or all of the aspects of the estate administration yourself, including applying for the grant of probate, or you can ask a probate practitioner for help. You do not need to use the same firm who drew up the will.

If the estate is complex or you would prefer to get some professional advice, an ICAEW accredited probate practitioner or a probate lawyer can help you deal with the estate. Accountants can be a good choice if you need help with the financial aspects of an estate. If probate isn’t required any financial or legal adviser can assist with the estate administration. Many ICAEW firms also offer estate administration as one of their services.

Some co-executors choose to conduct some tasks themselves and delegate others such as preparing estate accounts and tax returns to a probate practitioner. This could mean you save money compared to paying a professional to do all the probate and estate administration work. Speak to your probate practitioner to see if they offer a flexible fee.

The Legal Choices website provides some general advice about carrying out some legal work yourself known as ’DIY’ as well as the benefits of choosing a regulated lawyer. You can also read about the benefits of choosing an accountant.

Regulated probate practitioners should provide you with an engagement or client care letter setting out their terms, fees and complaints procedure. They should keep you regularly informed about progress and costs. Read our information sheet for consumers to find out more: The probate process explained

ICAEW practitioners can only act in non-contentious probate matters. In the event of a dispute, a specialist probate lawyer must take over the process. Find an ICAEW probate practitioner who can help you with probate and the administration of an estate using our probate register. You can also use the search function on the Legal Choices website to find a probate legal professional.

Lay executors and administrators can claim any reasonable out-of-pocket expenses from the estate for example, funeral costs and probate application fees. If there aren’t enough assets to cover these expenses, bills, and other liabilities, you should seek advice about how to manage an insolvent estate.

Under sections 28 and 29 of the Trustee Act 2000 a professional executor can charge you for their time administering the estate and any fees and disbursements. If they are a regulated probate practitioner, they must be transparent about their fees and publish this information on their website.

There may be a charging clause in the will which authorises the lay executor to charge for their time spent performing their duties. However, usually the will only makes provision for a professional executor to charge fees.

It is not a legal requirement to provide information to beneficiaries. However, it is important to be transparent. Probate can sometimes take a long time and you remain accountable to the residuary beneficiaries. Keeping them informed about progress can prevent complaints and help to maintain good relationships.

You can decide on the frequency of communication, but it is important to make sure beneficiaries are aware of any significant decisions that may affect their inheritance.

If a professional executor in an accountancy or law firm has been appointed, they will communicate any information and updates to you, which you can pass on to the beneficiaries.

You must pay any debts first before sharing any assets or gifts in accordance with the will. After all debts have been settled, anything left can then be shared with the beneficiaries. You may have to pay any remaining unpaid debts if you distribute the estate before the debts have all been paid. There is a strict order of distribution which sets out the priority for this.

1. Pecuniary legacies, such as a specific gift or sum of money, is paid first.

2. Residuary beneficiaries receive a share of whatever remains from the estate.

If there is not enough money in the estate to cover pecuniary legacies, their legacies may have to be reduced in equal amounts.

If it is an insolvent estate and there is not enough money to cover debts and taxes, debts must be paid back in order of priority. In both cases, this may mean that there is nothing left for any beneficiaries.