Some time ago, I agreed to be executor of the will of a dying relative. I had reservations, but as one of his nearest relatives I felt I had little option. Besides, it’s difficult to refuse a deathbed request from someone you have known all your life. If I knew then what I know now, would I have agreed so readily? I think not.
Perhaps naively, I have always considered myself fairly well-informed, reasonably literate and usually able to deal with bureaucracy and officialdom in all its forms. Surely I could be an efficient executor. What could possibly go wrong?
As it turns out, quite a lot. My first mistake was a lack of understanding of the legal and personal implications of being an executor. I’m not the first and I won’t be the last to stray unwittingly into a legal minefield with potentially long-term personal consequences. Winding up a small estate of under £5,000 should be relatively straightforward, but things can become dauntingly complex for larger estates, especially when property is involved.
For peace of mind it’s better to first ensure that the person for whom you are to act has left his or her affairs in good order. Do-it-yourself wills may be increasingly popular but they pose particular problems for unwary executors. Even if the deceased person’s intentions and wishes are absolutely clear, legal technicalities can cast doubt on the provenance of the document. In my case, a lack of understanding of the legal requirements for a will and the role of the executor caused immense difficulty.
I have slipped into a Kafkaesque-like game of snakes and ladders. Multiple snakes lurk behind every ladder. Uncertainty surrounding a will and its status can seriously delay or even prevent the all-important confirmation being granted. Without confirmation the executor cannot move forward. Property, such as the deceased person’s house, cannot be put up for sale to offset expenses. There are legal routes around problematic wills that can lead to eventual confirmation, but it is a lengthy and expensive journey.
It’s possible that unwary executors, like me, are ignorant of the personal responsibilities assumed by the executor. The meter starts ticking from the moment the deceased person draws his or her final breath. If there is no close family, responsibility for immediacies such as registration, notifications and funeral arrangements devolve to the executor.
In many cases there will be capital in the estate to meet short and medium-term expenses incurred by the executor. It’s increasingly common, however, in times of soaring house prices, for elderly people to be property rich but money poor. In that event, no capital is immediately available to pay costs such as increasingly expensive funerals. The buck stops with the executor.
Benjamin Franklin was spot on when he wrote that the only two certainties in life were “death and taxes”. Executors may find the second dogging the first. It is down to the executor to ensure all liabilities and taxes are paid; fine if there is capital, but that is not always the case. For example, in the case of property rich, money poor, Inheritance Tax (IHT) is likely to cause serious problems.
The executor is then faced with a classic Catch-22 situation. The taxman will demand a first instalment on IHT before confirmation will be granted. Without confirmation property cannot be put on the market. If the property can’t be marketed there is no capital to pay the first IHT instalment. It is then down to the executor somehow to find a way out of this vicious circle.
If things go wrong or potential beneficiaries allege negligence, the executor may find him or herself held personally and financially liable for losses incurred. Executors have been caught in the crossfire when wills have been disputed. They can still be held responsible if issues emerge even years down the line.
My experience has not been good, but I was certainly unwary and possibly unlucky. Anyone taking on the role should prepare better than I did. Above all, he or she should realise this is not an honorary or symbolic duty; it involves time and work. The more complex the estate, the more time and work it takes. It should never be entered into quickly or lightly. AgeUK’s fact sheet on being an executor sets out the requirements and is an excellent starting point for anyone considering the role.
Finally, it’s not easy to resign once responsibilities have been assumed. As with dog ownership, being an executor is for life.
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