Published on: 20th July 2020

Do I have to act if I am appointed as an executor in a Will?

If you have been appointed as an executor in a Will it might be for close family such as a spouse, partner or children. You will probably know a lot about their affairs and so even though it may be a very difficult time you may well be able to gather all the required information. However, you may have been appointed as an executor in the Will of a distant relative or a friend. Do you have to act? Do you know your responsibilities? More importantly do you know your liabilities? Put simply you are personally liable for any mistakes and if the estate loses out financially because of your mistake then you will have to personally make good the loss.

If you are a joint executor you might be pleased if the other executor knows the deceased’s affairs better than you and so you are happy to let the other executor do the work needed. But being a joint executor means that you are jointly liable and so if the other executor makes a mistake then you are jointly financially liable. Simple errors can be costly. For example, if you distribute funds to a bankruptee. 

What options do you have?

1. Act as an executor
Accept your appointment and act as executor of the Will (with all the responsibilities that come with the role).  

2. Renounce
You can renounce your right to act as executor and obtain the grant of probate. This needs to be in writing and signed in the presence of a witness and done at the beginning of the probate process when you have taken no action as an executor.

When a renunciation is completed in this way the effect is as if you had never been appointed as executor of the estate. The other executors (or replacement executors) can then obtain the grant of probate.

If there are no other named executors in the Will, this does not stop you renouncing but does mean that someone (there is a prescribed order of preference subject to relationship with the deceased) will need to act in your place. Renunciation means that you would not be liable for any actions carried out in the capacity of an executor. 

3. Reserve power
In some situations, to renounce your right completely may seem too extreme, for example you may not feel emotionally strong enough to deal with the formalities of being an executor of the Will or have enough time to commit to the administration, but do not want to feel excluded completely from the process.

The option available is to have “power reserved”. This means the other named executors will obtain the grant of probate but by reserving power, the executor who does not initially apply for probate will retain the right to prove the Will at a later stage (for example when they have come more fully to terms with their loss and feel more emotionally robust and able to deal with the process). A separate application to the Probate Registry will be made at this point which will lead to what is known as a grant of double probate. Following such a grant, any documentation will need to be signed by all the executors to the Will.

As an executor with power reserved you would have limited liability; there would be difficulties in making a claim against a non-proving executor, but that does not mean it cannot be made (it would be dependent on the situation). However, in the event that you were to apply for double probate, all actions carried out by the original proving executor will stand and therefore you will have the same duties, liabilities and rights as the executor who took out the original grant of probate.

If you would like any more information about being appointed as an Executor in a Will, then get in touch with us and we can arrange for one of our Consultants to discuss the matter with you and advise as appropriate. Please  visit the contact page of our website to get in touch or call 01732 868190 and one of our friendly team will be able to advise. 

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