To be an executor, or not to be? That is the question

Hazel Totton died in July 2019.  Her Will left three small legacies, and the residuary estate was to be divided as to 50 percent for Mark Totton, who was also appointed as her sole executor and trustee and 50 percent for her two grandchildren.  Mark initially set about administering her estate as expected and applied for and obtained a Grant of Probate in November 2019.  He also sold Mrs Totton’s property, which was her main asset, in April 2020 for £425,000.  However, he then failed to progress with the administration for two years and made no efforts to distribute any proceeds from the house sale or the other assets of the estate to the other two beneficiaries.

After several unsuccessful attempts by the grandchildren to informally obtain information from their uncle regarding the assets of the estate and when they would receive their share, the matter went to court in March 2022.  A freezing injunction was granted, and the executor was ordered to provide the grandchildren with the value, location and details of all assets of the estate.

The executor failed to comply with the Order and, in August 2022, was held to be in contempt of court.  At the sentencing hearing, he admitted that he had breached the Order and apologised to the court.  He also said that he had buried his head in the sand and received a number of envelopes which he just left unopened.

The Judge found that a 4 month sentence was justified for the breach by the executor on the basis that:

• the grandchildren had suffered significant prejudice as a result of the executor’s conduct; they are both young people who have been kept out of their share of the estate for almost three years and two years after the principal asset was sold;
• the executor had not acted under pressure from third parties to breach the Order and, as the sole executor, who had not instructed solicitors to assist him, he was solely responsible for the breaches;
• the breaches of the Order were serious, as they were deliberate, the executor was aware of the breaches and did nothing to comply,
• the executor’s failure to engage with the legal process demonstrated a high degree of culpability; and
• there was no mitigation by the executor, no cooperation with the grandchildren or their solicitors, and he had failed to attend court until he was forced by warrant.

This case may seem like an extreme example of executorship gone wrong.  However, administering an estate can feel onerous and can leave an executor, who may be a grieving family member, feeling overwhelmed at an already emotional time.

Executors are responsible for valuing the deceased’s estate, submitting an inheritance tax account to HMRC and arranging payment of any tax due, applying for the Grant of Probate, collecting in the assets of the estate, paying any debts and administration expenses, preparing full estate accounts and distributing the estate to the beneficiaries of the Will.  When making your Will, it is, therefore, important when choosing your executor or executors that you choose people who you think would have the necessary skills, willingness and ability to perform the role.  We recommend that you check with your intended executors prior to appointing them.

Circumstances change, and on your death, when it comes to administering your estate, someone who previously thought they would be able to act as executor for you may no longer be able to.  This could be for a number of reasons: death, ill health, mental incapacity or other personal commitments and time constraints, to name a few.  Don’t panic though – it is not normally problematic if an executor can’t act.  They have the option to either have power reserved to them or to renounce executorship.  This allows the remaining named executors or the substitute executors to administer the estate without them.

When making their Wills, clients often show hesitation when choosing their executors as they do not want to burden their relatives with this task at an already difficult time.  This is where we can help.  We can support your executors, acting on their behalf to administer your estate.  The executors can have as little or as much involvement as they wish in the process, and we can do the rest!  We have lost count of the number of times we’ve been thanked over the years for lightening an executor’s load and giving them peace of mind that the estate has been administered ‘above board’.  There is no need to worry about your relatives forking out for legal fees either, as our fees are an estate expense and will be paid from your estate when the assets are collected in.

Are you thinking about making a Will and trying to decide on your executors?  Or perhaps you are an executor looking for some help or reassurance administering an estate?  We can help.