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Executors and their duties – common pitfalls?
An executor is the person who puts the wishes of a Will into effect – and they don’t have an easy job. People often underestimate the extensive responsibility and challenges that come with being an executor of an estate. And, there’s a huge amount of personal liability that it can bring if things go wrong.
Contentious Probate expert, Alexia, looks at a few common pitfalls executors often fall into.
All executors have a statutory duty to carry out the administration of an estate with care and skill. This, broadly, means that the executor must act in the best interests of those who stand to inherit the estate. They must also avoid any loss or damage to the estate.
All too often, executors fail to take any legal advice, which can then lead to mistakes during the administration. When that happens, executors can find themselves having to foot the bill for any financial or legal claims that occur because of their actions.
Some examples of common mistakes that executors make when administering an estate include:
imprudent investment and inadequate book keeping
failure to pay the correct taxes on the estate which often leads to significant penalties
failing to make proper enquiries of beneficiaries of any lifetime transfer by the deceased
failing to get the Court’s direction (a Beddoe application) when faced with a claim against the estate
neglecting to properly insure the assets of the estate and failing to secure vacant property
acting too slowly meaning that a property falls in value or the estate is penalised for late payment of debts
misuse of assets
failing to investigate or pursue a claim on behalf of the estate.
If an executor breaches their duty, they can be held financially liable – even when the breach is not deliberate.
My advice is to consider carefully whether you have the time and expertise to take on the role of an executor, before you do so. If you decide that you do, be sure to seek the advice of a suitably qualified solicitor to limit any personal liability.
If you have an interest in an estate in which an executor is not fulfilling their duties, or if you are the executor who is being challenged by the beneficiaries, our highly experienced litigation team are happy to provide expert advice.