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What does an executor do?
An executor is the person you name in your Will to manage and distribute your estate after your death. Their responsibilities can include gathering your assets, settling any debts or taxes, and ensuring that your beneficiaries receive what you have left to them. The role can last for several years, depending on the size and complexity of your estate.
Naming someone as your executor does not mean they are obliged to accept; they can decline. Potential executors need to understand what is involved and be willing to take on the responsibilities, so have an open and honest discussion with anyone you are considering appointing.
Key factors to consider when choosing an executor
Eligibility and age
Your executor must be over the age of 18. Your chosen executors should also be younger than you to reduce the risk that they will be unable to act when the time comes. This can be more challenging if you are a younger testator, as finding someone who is both over 18 and has the capacity and ability to serve effectively may be difficult. It is advisable to regularly review your executor(s) to help avoid possible issues in the future.
Skills and suitability
The skills your executor needs will depend on the nature of your estate. If your estate includes business assets, agricultural property, or complex investments, you will need someone who is organised and capable of managing potentially complicated financial affairs. Consider whether the person you have in mind would be able to make important decisions, such as those relating to the running of a business, after your death.
Communication
A good executor must be able to communicate effectively, not only with financial institutions and professional advisers but with the beneficiaries of your estate. When beneficiaries are left in the dark about the progress of the estate administration, they may begin to question whether things are being handled properly.
Trust and impartiality
Your executor has a duty to act in the interests of all the beneficiaries and the estate as a whole, not just one individual. They should remain neutral and make decisions fairly. This is particularly important where the executor is also a beneficiary, as there is a natural risk that they may, even unconsciously, prioritise their own interests.
Can I name my children as executors?
There is nothing in law that prevents a beneficiary (assuming your child is one) from also serving as an executor. However, the question is whether your children are suitable for the role.
Ask yourself: do they get along? Can they make decisions together? And can they act impartially, putting the interests of the estate above their own? Where siblings have a difficult relationship or differing views, appointing them all as executors can create conflict.
Executors must agree unanimously on decisions. If you have three executors and two agree on a course of action but the third does not, that constitutes a dispute. This kind of deadlock can lead to costly court applications, significant delays in the administration of your estate, and can cause lasting damage to family relationships.
The role of independent and professional executors
If your estate is particularly complex, or if you are concerned about the potential for disagreement amongst family members, it is worth considering the appointment of a professional or independent executor.
In some cases, a good compromise can be to appoint one independent executor alongside one or more of your executors, which can help to prevent deadlock and keep the administration on track. However, if you genuinely do not think your executors will be able to agree, it may be better to appoint one or two independent executors to act in the best interests of the estate.
The importance of replacement executors
Life changes, and the people you name as executors today may not be able to act when the time comes. Your named executors may have passed away themselves, lost mental capacity, or simply find that their circumstances have changed such that they can no longer take on the role. It is important to name replacement executors in your Will; trusted individuals who can step in if your first-choice executors are unable to serve.
Talk to your family
One of the most effective ways to prevent disputes is to have open and honest conversations with your family about your Will and the decisions you have made. If your family members understand your wishes and the reasoning behind your choices, they are far less likely to challenge those decisions after your death.
Frame the discussion positively. You might explain that acting as an executor is a demanding and time-consuming role, and that you have chosen to appoint someone else with more time or expertise to take that burden off their shoulders. This approach can go a long way towards heading off future disagreements.
If you feel unable to have that conversation during your lifetime, another option is to prepare a side letter to accompany your Will. In this letter, you can explain your reasoning, making clear that you did consider your family members and setting out why you made the choices you did.
Estate planning in blended families, where one or both partners have children from previous relationships, can be particularly sensitive. The choice of executor is crucial in these circumstances.
Keep your Will under review
Your Will is not a document you make once and forget about. It should be reviewed every 3-5 years or after any big life event (marriage, the birth or death of family members/executors or when receiving more assets) to ensure that it still reflects your wishes and circumstances. It is important to consider whether you still trust the people you have named as executors and whether you still have a relationship with them. Do they still have the skills and willingness to act?
The purpose of choosing the right executor is not about pleasing everyone, it is about making sure there is a trusted person in place who can carry out your wishes and administer your estate correctly. Speak to your solicitor about your family circumstances, be honest with them, and take their advice.
Practical checklist for choosing your executors
- Consider impartiality carefully. An executor who is also a beneficiary may find it difficult to act neutrally, especially where the interests of step-children and biological children may differ.
- Assess relationships honestly. Think about whether the people you are considering as executors can work together effectively and make joint decisions without conflict.
- Remember the unanimity rule. All executors must agree, there is no majority vote. If a disagreement arises, the matter may need to be resolved by a court, causing delay and expense.
- Think about an independent executor. A professional or independent executor can provide a neutral voice and help to manage competing interests fairly.
- Name replacement executors. Circumstances change over time, so ensure there are trusted alternatives who can step in if needed.
- Communicate your wishes. Wherever possible, talk to your family about your decisions and the reasons behind them.
- Consider a side letter. If direct conversations are too difficult, a letter kept with your Will explaining your reasoning can provide valuable context for your family after your death.
- Review your Will regularly. Your circumstances, relationships, and the suitability of your chosen executors can all change over time. Review your Will every few years to ensure it still reflects your wishes and that your executors remain appropriate.
- Be honest with your solicitor. Share the full picture of your family dynamics so that your solicitor can give you tailored advice about who to appoint and how best to structure your Will.
For help preparing your Will, or advice on choosing the right executors, please contact our Private Client solicitors on +44(0)3333 231580 or contact us by email.
