Where there is a will

Frequently Asked Questions

• What are my duties as executor?

  If there is a will and you are named as the executor (otherwise known as personal representative), your role is to administer the estate in accordance with the will.  You will face a number of tasks and obligations.  The complexity of your role will depend upon the size and nature of the estate.   In many cases you will need to obtain a grant of representation (grant of probate) to deal with the estate assets. 

  There are some circumstances in which an executor will not need to obtain a grant of representation, but whether or not this is required, the first task will be to gather as much information as possible about the deceased person’s assets and debts so that an informed decision can be made.

  If a grant of probate is required, you will need to apply to the probate court for a legal document known as a grant of representation, which authorises you to administer the deceased’s estate, including all of their savings, investments, property and possessions.  It will also involve you settling all taxes and debts of the deceased and their estate and then distributing the remaining assets to the correct beneficiaries.

• When should I seek professional help with the estate administration?

  The role of an executor is both time consuming and onerous and carries with it obligations which can expose those assuming the role to personal liability. As a result, executors should carefully consider whether they wish to act personally, or whether to instruct a professional to act on their behalf. 

  An executor should especially consider instructing a professional if any of the following applies:

  • They have no experience of dealing with legal documents, or financial assets
  • They have limited time to deal with an estate
  • If the will is complex, particularly if it includes continuing trusts
  • Where the estate is likely to have an inheritance tax liability
  • If there are multiple beneficiaries, particularly if those include charities, or children who are under 18 years of age
  • If the will is being contested, or where immediate family members or other dependants of the deceased have been excluded (or substantially excluded) and the risk of a claim exists
  • Where there are relationship complexities or difficulties within the family of the deceased or between beneficiaries.  
  • If there are foreign assets
  • If the deceased owned agricultural or business assets
  • Where there are likely to be final income tax and capital gains tax liabilities to settle (and where the estate may also have income tax and capital gains tax liabilities to declare and settle)
  • Where those who inherit the estate wish to vary their entitlements
  • Where there is no will
• What happens if there is a will but no executor?

  In this situation someone will need to be nominated to act as the personal representative.  There are rules dictating who has a right to apply and professional advice should be sought.   That person will obtain a grant of administration (with will annexed) which will give that person the power to administer the estate in accordance with the will, as though they had been appointed under the will. 

• What should I do if someone disputes the will or claims against the estate?

  While the role of a personal representative in administering an estate is generally neutral, we are alert to the possibility of disputes arising. When this occurs, we are able to advise the personal representatives of the role they must assume in the dispute to ensure that they comply with their duties correctly.    If an estate becomes contested, we can refer you to our specialist disputed wills and estate team

• Can I change or redirect my inheritance under a will?

  There might be a number of reasons why you might wish to change or redirect your inheritance.  The most common reason for re-directing a gift in a will is for tax planning purposes either to improve the tax position of the estate or as part of the beneficiary’s personal estate and succession planning.  Sometimes, however, the will might have unintended consequences and the beneficiaries may agree to ‘correct’ this by redirecting assets between themselves or to other people. 

  It is important to understand that a will cannot be changed as such but a beneficiary can choose to redirect their entitlement by a document called a deed of variation.  In such cases all of the beneficiaries who might be affected by the change must agree (and to agree they must be adults with capacity) and if the change effects the tax liability of the estate, the executors must also agree.  

  If drafted correctly and as long as it is done within 2 years of death, a deed of variation can have advantages for inheritance tax and capital gains tax because the re-directed gift is treated for tax purposes as though the testator’s will had already provided for the ‘new’ gift.   A common reason to vary entitlement under a will is to enable an estate to take full advantage of the residence nil rate band for inheritance tax.   We can advise you whether a deed of variation is appropriate for you and advise you over the tax and other consequences of such a variation. 

• What will it cost to have professional help administering an estate?

  For information relating to the costs of our estate administration (probate) services please see here (add hyperlink to costs information on fees page)