Thomas Hazlewood

When making a Will, it is easy to focus on who you wish to benefit. That is of course a key decision. It is easy to undervalue the importance of who you appoint as your executor. They will be running the ship at a very challenging time for everyone. Whilst your Will usually stipulates who is to benefit, your executors are key to the administration of the estate running smoothly.

What is an executor?

Who could be an executor?

The options available for who could be your executor(s) are seemingly infinite. Common choices include:

• Spouse/civil partner;
• Children (once they are adults themselves);
• Other family members such as siblings, parents, nieces and nephews;
• Long-standing friends; and
• Professional executors such as a solicitor or accountant.

In short, almost any body could be your executor provided they are themselves over 18 and have capacity.

Who should be an executor?

Whilst it seems that almost anyone could be your executor(s), who should take on the role is a different matter. Seven important factors to consider are:

1. Do you trust them? Whilst your Will usually sets out who should benefit from your estate, there is scope for abuse. This is the case for any position of trust. The executor will have control over your assets. They could retain some or all of the funds for themselves when they shouldn’t. If your wishes are more complex, they could have discretion as to who should benefit. There is even greater scope for abuse in that scenario – please see below
2. How many executors should you appoint? Up to four executors can be appointed but usually two is executors sufficient. If you are only appointing one executor initially it is worthwhile appointing a replacement executor. They can step in if the original executor is not available for any reason. Without a replacement appointed, it is easy to consider the scenario where a sole appointed executor is unable to act. They could have died themselves, lost capacity, or have too many other demands on them at that time.
3. Is it their strength? Some people just don’t enjoy the what the role requires – paperwork and organization. At a time that is likely to be highly challenging, it is best to play to loved ones strengths.
4. Are there any family dynamics that need to be considered? If family tensions exist, appointing a neutral executor can help avoid disputes. This may be a long-standing family friend or could be a professional, like a solicitor or accountant. Executors must act in the best interests of all beneficiaries, not just one.
5. How complex is the estate? In complex estates (e.g. involving businesses, trusts, or overseas assets), appointing a solicitor or professional executor can be worthwhile. An executor is always free to instruct a professional, e.g. a solicitor or an accountant, to advise and support them. However for complex estate, it can be easier to include a professional from the outset. You will then also have some control over who that professional is and ensure the professional understands your circumstances.
6. Who will be benefiting from your estate? Whilst an executor can also be a beneficiary, it is important to consider this point. It is especially important to consider where your estate is more complex. The complexity could be due to the the size of your estate, the inclusion of trusts within your Will or family dynamics. In each of these situations it is worth at least considering appointing independent executors to those beneficiaries.
7. Are they able and willing to act? It is always worth checking that someone you wish to appoint as your executor is able and willing to take on the role. If they know they would not be able or willing to act, you can identify a suitable alternative option now. This is much easier for everyone than the uncertainty of an executor refusing to act when you die. Linked to this, it is important to consider whether they are likely to be able to act when the Will is used. Executors should be old enough to act responsibly but not so elderly that ill health might prevent them from completing the task. This is an important consideration to keep under review. Living nearby can also make practical matters easier but isn’t essential.

Summary

Who could be an executor and who should be an executor are very different things. There are seven key questions to ask yourself when thinking about who to appoint as your executor(s). These are:

1. Do you trust them?
2. How many executors do you need?
3. Is it their strength?
4. Are there any family dynamics that need to be considered?
5. How complex is your estate?
6. Who will be benefiting from your estate?
7. Are they able and willing to act?

If you are about to put a Will in place, make sure you consider these points when deciding who to be your executor. For those of you who have a Will in place, these may seem obvious now, but do you recall consciously thinking about each of these factors?

If you have any questions about who to appoint as your executors, please feel free to reach out.