When drafting Wills for our clients, we are frequently asked to explain the advantages and disadvantages of appointing a personal executor, as opposed to appointing a professional executor.
The person making the Will (known as the testator) appoints an executor to act on their behalf when they pass away. The executor is the person who will be responsible for administering their estate, and ensuring that any wishes expressed in their Will are carried out. Typically, between one to four executors are appointed, depending on the wishes of the testator.
Typical tasks the executor will complete include:
- Arranging the funeral of the deceased;
- Collecting all assets and money due to the estate;
- Paying any outstanding taxes and debts owed by the estate; and
- Distributing the estate to the people entitled to it, in accordance with the deceased’s Will.
The testator has the option to appoint personal executors, professional executors, or a combination of both. There are advantages and disadvantages to each.
- May know what the testator would have wanted.
- May have experience in dealing with aspects of the deceased’s estate, or have information or documentation readily to hand.
- May know the parties involved (e.g. those named in the Will) and can keep them informally updated on their progress with administering the estate.
- Whilst a personal executor can claim for reasonable expenses, they generally cannot charge a fee for their time spent acting as an executor. If they do not seek legal advice, their expenses are likely to be lower than the cost of appointing a professional executor.
- If the personal executor was close to the testator, they will have to cope with the emotional strain of dealing with the death of the testator, as well as having the burden of administering their estate.
- The appointed person may be unable to act, not want to fulfil the role, or may even have predeceased the testator.
- A personal executor has to accept a high degree of responsibility and if mistakes are made, these may incur personal liability. They may lack the expertise and impartiality to deal with the estate, especially if it is of high value, complex, or includes foreign assets. Errors may be made which could lead to tax (or an increased amount of tax) being paid. Mistakes could also lead to litigation.
- A professional executor will have experience in dealing with the administration of an estate and be familiar with dealing with high value and complex estates.
- The general appointment of say, partners within a law firm or a trust corporation, would mean that there would always be someone available who could step into the role. This avoids a situation where a personal executor is appointed, but is unable to act. In this situation, the law will specify who is able to act and this may lead to someone being appointed executor in the administration of the estate that the deceased would not have wanted.
- The number of claims being made against estates by dissatisfied beneficiaries is increasing. The threat of litigation and tension amongst family and friends may cause difficulties in the administration of an estate, especially where one or more of those people are appointed as the executor.
- A professional executor brings impartiality, and can ensures that the administration is handled in the best interest of the beneficiaries, and in a manner that would minimise the chance of a dispute arising.
- Should anything go wrong in the administration of the estate, then the professional executor will have professional insurance in place, unlike a personal executor.
- There will be costs incurred for the time spent by the professional executor in administering the estate. However, the professional executor is required to keep the costs incurred to a reasonable level, and would agree these costs before they begin any work.
- Whilst costs are important, the process of administration can be complicated, and even in cases where a personal executor is appointed, they will often still seek advice from a solicitor. This means that legal costs are still incurred. In some circumstances, it is therefore more cost efficient to appoint a professional executor from the outset.
EMW has a Trust Corporation and can offer clients a cost effective option that will ensure there is always someone able to act as Executor. To find out more about EMW’s Trust Corporation, please see the following article Launch of the EMW Trust Corporation Limited
If you would like to discuss having a Will drafted, any of the points raised in this article, or if you need advice, please contact Oliver Kent or another member of the EMW Living Team.
Alternatively, please click here to find out what our EMW Living team can help you with.