The appointment of executors- FS Flashcards
Who is a personal representative, and what is their primary role?
A personal representative is someone over 18 who is legally responsible for administering a deceased person’s estate after death.
Example: If Ahmed dies leaving a will, his named executor Sarah will act as his personal representative.
What is the difference between an executor and an administrator?
An executor is appointed by a will; an administrator is appointed by the probate registry when there is no will or no executor willing/able to act.
When does an administrator act instead of an executor?
When the deceased dies intestate, or the will has no validly appointed executor who can act.
Example: If Emily dies without a will, her adult daughter may be appointed administrator by the probate registry.
What are the typical duties of an executor?
To collect assets, pay debts and taxes, and distribute the estate according to the terms of the will.
Example: Raj is appointed executor in his aunt’s will. He closes her bank accounts, settles bills, and transfers property to her named beneficiaries.
What is the role of a trustee in the context of a will?
A trustee manages specific assets held in trust on behalf of a beneficiary, often over time or until a condition is met (e.g. age).
Example: A testator leaves £10,000 in trust for his grandson until he turns 21. The trustee holds and invests the money until then.
Can the same person act as both executor and trustee?
Yes, and this is often convenient as it streamlines estate administration and trust management.
Example: Greg appoints his solicitor and close friend to act as both executors and trustees in his will.
What makes a valid appointment of an executor?
The testator must be of sound mind, appoint a living person who is willing and able to act, and do so in a validly executed will.
when would an appointment of an executor be invalid?
If the will was invalid (unwitnessed and written while possibly lacking capacity), and the appointee (his deceased mother) cannot legally act.
Why is choosing your executor an important reason for making a will?
It ensures someone you know and trust, possibly with professional expertise, will carry out your wishes after death.
Example: A person might appoint both a family member and a solicitor for a balanced approach to estate management
Can an executor refuse to act, and what happens if they do?
Yes, an executor may renounce their role. If no other executors are named or willing, an administrator will be appointed by the court.
Who appoints an executor, and in what type of legal document?
A testator appoints an executor in a valid will to administer their estate after death.
What is the minimum and maximum number of executors that can be appointed and act in probate?
A minimum of one can be appointed, but only four may apply for a grant of probate, even if more are named.
Why is it risky for a testator to appoint only one executor?
The sole executor may predecease the testator, or be unwilling or unable to act, leaving the estate unadministered.
What are the three categories of executors that a testator may appoint?
(1) Non-professionals (family/friends),
(2) Professionals (e.g., solicitors),
(3) Banks or trust corporations.
What is one advantage and one disadvantage of appointing a non-professional executor?
Advantage: familiarity with the testator and may act free of charge.
Disadvantage: lack of legal or technical expertise, leading to reliance on professionals.
Example: A son appointed as executor may waive payment but still need solicitor support.
What is the key advantage of appointing a professional executor?
Professionals like solicitors or accountants bring legal and administrative expertise to the estate process.
What risk arises from appointing only an individual solicitor (rather than a firm) as executor?
The solicitor might retire, die, or decline to act, unlike a firm which can assign the role internally.
When might a testator consider appointing a bank or trust corporation as an executor?
When the estate is large or complex, requiring financial and trust administration expertise — though banks often charge higher fees.
Can executors charge for their work? What are the general and exception rules?
General rule: Executors may not profit from their role.
Exceptions:
(1) Reasonable expenses, and
(2) Professional executors or trust corporations under Section 29 of the Trustee Act 2000.
Why can a professional executor like a solicitor charge for their time under Section 29 of the Trustee Act 2000?
Because they are acting in a professional capacity, and the statute permits them to be remunerated for time and skill.
Example: A solicitor executor bills for legal services involved in applying for probate.
Why would a testator appoint both a non-professional and a professional executor together?
To combine personal insight (from the non-professional) with legal and procedural competence (from the professional).
Example: A friend understands family dynamics, while a solicitor manages legal compliance.
In the case of Janet’s will, why are her friends Sarah and Chris unable to charge for their work as executors?
Because they are non-professional individuals, and Section 29 does not apply. They can only claim reasonable expenses, not remuneration.
