The role of an executor of a Will comes with great responsibility, namely, to ensure a person’s last wishes are granted with regards to their estate as per their Will.
In this blog, our Dispute Resolution experts explain the role of an executor and describe a case which highlights the importance of looking at the bigger picture when agreeing to be an executor of someone’s Will.
Is being an executor a good thing?
When a person dies, their estate is controlled and administered by either a person or persons set out in the deceased’s Will or by someone who has the right to do so upon application if in the case of an intestacy.
In many administrations, the job of an executor (or Personal Representative) is fairly straight forward. They collect in the assets of the deceased, pay his or her liabilities/debts, and then transfer any specific bequests in a Will. Then, they pay out to the remaining residuary beneficiaries from whatever is left over.
However, being an executor brings obligations and responsibilities that many who find themselves appointed as such, do not necessarily realise. Executors have to act in the best interests of the beneficiaries, and this can be problematic when the beneficiaries have differing requirements or wishes.
There can also be a problem where an executor is also a beneficiary, and their best interests do not sit with the other beneficiaries. Can the beneficiary challenge the executor’s actions if they are not ‘fair’? Can the executor be personally responsible for the costs of such action?
The answer is ‘yes’ and ‘yes’ and the recent case of the estate of Lady Rosamond, the former Countess of Cardigan, highlights that clearly.
The Countess of Cardigan case
When Lady Rosamond died in 2012, her estate was worth c£2,000,000. She left her estate, by Will, to her daughter Lady Catherine Anna Brudenell-Bruce and her son Viscount Thomas Savernake in equal shares. Lady Catherine is also known as Bo Bruce, a former contestant on The Voice.
The estate contained Lady Rosamond’s property known as Leigh Hill House (valued now at £2.4m) which Thomas lived in after his mother’s passing. Under the terms of the Will, Lady Catherine inherited 50 percent of the property and, as she was, in her own words, desperate for money, she asked Thomas, who was the administrator of the estate, to arrange its sale. Thomas refused.
Consequently, Lady Catherine issued a claim against Thomas in the High Court. She wanted the court to order that the property be sold as Thomas’ actions were unreasonably preventing her access to her inheritance. The High Court agreed. Deputy master John Linwood adjudged that Thomas had “ignored his responsibilities” as executor of the Will. He was not acting in the best interests of Lady Catherine, who was also a beneficiary.
In fact, it seems that Thomas had blurred the lines between his rights as a beneficiary himself and the obligations he was bound by due to his post as executor.
As stated above, executors are required to collect in assets and, after paying out liabilities, distribute according to the Will or the rules of intestacy. In of itself, this is not a difficult concept to grasp. However, deaths bring a whirlpool of emotion and executors often find themselves receiving pressure and criticism from beneficiaries who are eager for their share of the estate.
With that in mind, an executor has a period of one year to carry out their duties before the beneficiaries can seek to call for a distribution of assets. Of course, it can be reasonable for an estate to take longer than that one year to be administered and so exceeding the one-year period does not necessarily mean the executor is in contravention of their obligations.
But the clock is important in circumstances where a beneficiary believes (and can prove to a court if necessary) that there is no good reason as to why the estate has not been administered. It allows a beneficiary to ask for that executor to be removed with a substitute put in place, often a professional.
Such actions should not be taken lightly. The court does not like to remove executors who have derived their power from the wishes of the deceased, unless there is good reason to do so. Additionally, the costs of taking such action will easily run into four figures.
Removal of an executor
That said, the Countess of Cardigan case shows that the court will sanction the removal of an executor when their behaviour is at odds with the legitimate expectations of the beneficiaries. And sometimes the costs that accompany such an application are a necessary evil; once an executor has ‘inter-meddled’ with an estate, it is only the court that can remove them.
So, is it worth being an executor?
As mentioned at the start of this article, a majority of estates are easy to administer, especially with the help of a solicitor, so the role can be fairly straight forward. Additionally, professional executors (such as solicitors) are entitled to charge for their time, so taking on the role as a lay person will – providing things go well – save the estate money.
However, an executor may wish to look at the bigger picture – is there likely to be a dispute? Am I a beneficiary as well, and could I have issues with the other beneficiaries?
This will help them decide whether it is worth the stress and cost of taking on the role. Even if appointed by a Will, an executor can renounce it and decide not to take on the job.
Should you wish to receive advice on your responsibilities as an executor or administrator, please feel free to contact our Wills, Trusts and Probate team. Alternatively, should you have any concerns over an existing executor, the Bray & Bray Contentious Probate team is happy to discuss this with you.