Executor & Administrator Selection Rules

In England & Wales you have the right to select anybody you want to be your executor subject to a few conditions:                                                                                                               

They must be a minimum of 18 years old.                                                                     

They must be of sound mind.                                                                                           

They must not be insolvent.

When making your executor selection you do not have to limit yourself to just the one, you can select multiple executors; however, you are constrained to the English and Welsh legal upper limit of four executors acting simultaneously on your behalf at any one time.  These executors must be listed in your English or Welsh Last Will and Testament and clearly noted as executors.  In addition to the executor selection you have the legal right to choose substitute executors and have them on standby.  These substitutes need to be written in your Last Will and Testament and noted as being substitutes.  The substitute executor will have the same powers as the initially selected executor.                                                                     

You can in England and Wales write whomever you want on your Last Will and Testament as an executor; however, be warned, they have the legal right to decline the role when the time comes.  Even whilst an executor is actively carry out the administration of the estate they can resign from the role any time they want.            

An executor can not be fired from their duty.  The only way an executor can be removed from their role is by the court and this would only happen in England & Wales if that executor was found to be guilty of illegal, inappropriate or irresponsible conduct in the performance of their duties.        

Should a multiple of executors be chosen by the testator and they accept the responsibilities then each of those executors all have the power to act individually.  Each one gets full power to carry out the entire duty of administering all the property and estate.  They are not answer able to each other and their only responsibility is to doing their duty proficiently.  Each of the executors in this case is independently liable for any losses to the estate due to reckless mistakes that they might make in sorting out any element of the estate.                                                         

Another approach is to write instructions in your English and Welsh Last Will and Testament specifying that they carry out the role jointly.  With this approach, the executors must work together.  They each have to countersign their agreement to some course of action before that action can be taken.   In this scenario, the executors become jointly liable for any losses to the estate due to any irresponsible actions that they might take. 

The appointed executors can divvy up the supervision and distribution of the testator or testatrix’s’ estate in any way they want and see fit.

The liability for losses to the estate mentioned above automatically applies in relation to the duty as an executor.  It is possible within the wording of your English & Welsh Last Will and Testament to add a clause which absolves the executor from liability for losses caused in error by them selves.  A professional firm selected as an executor would likely refuse to act if there is potential possibility for liable against them for accidental losses, in which case such wording within the Will is definitely important. In England and Wales nothing absolves anyone from deceitful or dishonest actions that cause losses to the estate. 

After somebody’s death a person, not necessarily a proposed executor, might accidently ‘ jump the gun ‘ and begin to take action with the deceased property ahead of a Grant of Probate being granted.  As such they have acted without legal permission to do so.  Most likely no harm was intended.  In this situation, they are technically acting as an executor by carry out a part or parts of the duty that an executor would have done.  By doing so, under English and Welsh law they are automatically accountable and liable if their actions are found to cause any losses to the estate.  They are classed as an executor by default in relation to these actions, whether they like it or not.  The fancy term for this is an executor de son tort.

 As mentioned above executors can be liable for making mistakes when dealing with your property and estate and as a result of this they have an automatic duty of care to carry out the responsibility correctly.  Since they hold a position of such accountability, it is deemed only fair that they can do the job in any way they deem best.  To do the position justice it is often the most sensible decision to get help.  Under English and Welsh law executors have the legal right to get the help of friends and family or gain expert aid on any task or issue when they believe it is necessary and best for the estate.  Any cost or fees associated with this are to be offset against the estate.

When a person dies Intestate then there will not be any executors appointed.  In this event it is up to the English or Welsh court to select somebody to manage the estate distribution.  The person selected will gain the title of Administrator.  An administrator will have the same role and duties as an executor.  The administrator is subject to the same legal responsibilities and accountabilities.

Individuals who are appointed as an executor or an administrator in England & Wales are not legally entitled to make any money for their services as the executor or an administrator.  They can recover any expenses incurred whilst carrying out the governing of the estate.  Professional companies chosen for the duty are legally entitled to charge for their services.

Should it be a Non-Contentious Probate then the English or Welsh court selects the administrator in line with an order of precedence, customarily the nearest relative comes first.

The preset sequence for this is:   

husband or wife or municipal partner, kids, grandchildren, parents, brothers or sisters, nephews or nieces, half brothers or half sisters or their children if they are deceased, grandparents and uncles and aunts or their children if they are deceased, aunts and uncles of half blood or their children if they are deceased or as a last resort ‘The Crown’.

Whenever there is a situation in England or Wales with a Last Will and Testament Annexed for any reason whatsoever; which could be either at the time of your death or even part way through the distribution of your estate then the court selects an administrator in line with an order of precedence above. 

The formal approach to the selection of an Administrator is that anyone on the above list above can make an application to the English or Welsh courts for the Letters of Administration.  Those that do would usually be one of the inheritors under the Last Will and Testament or within the English and Welsh rules of Intestacy.  The court will select to grant the Letters of Administration and thus the title of administrator to who ever they believe is best suited to carry out the role responsibly.

There is normally in England & Wales one administrator granted the power to distribute the estate.  In the case where there’s a trust or life interest set up through a Last Will and Testament annexed or within a grant of the Letters of Administration then there is always a minimum of at least two administrators; unless a trustee company is appointed.

Essentially executors and administrators are the same in England and Wales bar only one crucial divergence.  Quite a few of the executor powers start upon the testator or testatrix time of death.  An administrator must wait until the Letters of Administration are granted before doing anything.

SEE ALSO:

Appointing A Guardian
Parental Responsibility
Changing Guardianship
Money For Child And Guardian
Introduction To Intestate
Wills & Family
Appointing An Executor.
Rules Surrounding Guardianship
Selecting Your Guardian
Inheritance Tax
Automatic Guardianship

 

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