Have you been appointed an Executor in a Will or are you thinking of making a Will and wondering who to appoint as executors?
An executor is the person appointed to administer your estate after you die. They have the responsibility of ensuring that all assets that form part of your estate are gathered and that all debts owing in the estate are paid to the relevant parties before any inheritances are distributed. It is a very important role and one that should be taken serious by the person appointed. It is often the case the executor only finds out that they have been appointed as such when they receive a copy of the Will of the deceased as it is not necessary to seek their prior consent to be appointed, although it is advisable to ask them in order to ensure that they will act.
The executor will normally be the one to make contact with the Solicitor holding the Will of the deceased. There is no official reading of the Will which takes place unless specifically requested by the executor and beneficiaries. The executor can decide whether or not to forward a copy of the Will to all of the beneficiaries named therein or they may decide to only inform the beneficiary of the benefit they are receiving as part of the Will.
As an executor you are obliged to extract a Grant of Probate in the estate and to administer the estate of the deceased. The powers and duties of an executor begin at the date of death of the deceased. From that date the whole estate devolves or passes to you as executor and you have very wide powers under general law. An executor may renounce the executorship but once you decide to take on the role of executor you cannot then renounce it at a later stage.
One of the duties of the executor is to ascertain the precise value and extent of all of the deceased’s assets and liabilities. The executor must ensure that the assets of the estate are properly protected and there is a duty to ensure all assets normally requiring insurance such as a house, lands or other valuable items. An executor must ascertain all outstanding debts, taxes, etc and check that there are no claims outstanding against the estate.
All of the beneficiaries under the Will must be ascertained. An executor must make enquiries of all beneficiaries in relation to prior gifts/inheritance received by them to ascertain whether they have a Capital Acquisitions Tax liability.
When all enquiries have been made a schedule or list of all the assets and liabilities must be prepared. This is an official document known as the Inland Revenue Affidavit and it has to be sworn by the executor along with several other documents and declarations. When all the relevant papers have been lodged in the relevant tax offices and the probate office the Grant of Probate subsequently issues. The executor is then in a position to collect all of the deceased’s assets. The executor is obliged to pay the funeral and all the other outstanding debts of the deceased. The executor is then required to distribute the assets to those entitled while ensuring that taxes are paid. These taxes include all taxes due by the deceased prior to his death, all taxes arising out of the administration of the estate and all inheritance tax or capital gains tax arising out of the distribution of assets.
An executor can seek the assistance of various individuals in order to fulfil their role such as an accountant, auctioneer or an agricultural consultant.
An executor is seen to have discharged their role once they have been seen to have taken all precautions which an ordinary prudent person would take in managing similar affairs of his or her own. This is why the role is so important and why careful consideration should be taken when deciding on who to appoint as an executor. It also useful if the person appointed lives in the Country as they will be required to sign various documents including the original Will of the deceased.
As an executor you are not entitled to receive payment for your work however you can claim reasonable expenses such as travel and be refunded for the cost of an expenses that you have had to incur on behalf of the deceased estate, for example memorial cards, funeral meal etc.
The estate administration needs to be commenced and completed within a reasonable frame of time; failure to do so can see the executor being liable for any financial loss that the beneficiaries experience. An executor has what’s known as an Executors year in order to extract a Grant of Probate to the deceased estate. If they fail to extract it in this time, then an application can be made to the High Court by a beneficiary in order to have them set aside.
Ciara McLoughlin Solicitor
*Before acting or refraining from acting on anything in this article, legal advice should be sought from a Solicitor.