Can An Executor Decide Who Gets What?
One of the most important aspects of estate planning is deciding who to appoint as your executor. This will be the person who manages your estate and carries out your final wishes after you die. A question we are often asked is whether you can let an executor decide who gets what after you pass away. We explain everything you need to know in this brief guide.
In most cases, when you die, your final wishes will be carried out exactly as they have been written in your will. This is one reason that it is vitally important to not only create a valid will while you are alive, but also to name one or more executors who you trust to carry out those wishes.
Executors are responsible for distributing your assets to your friends, family members and other beneficiaries after you die. They will often be a close friend or family member themselves, and there is sometimes concern among beneficiaries that an executor may decide to withhold money or property, or distribute assets according to their own desires. Can a will be interpreted by an executor in certain ways for their own benefit?
The short answer is no: an executor cannot decide under most circumstances and there are legal procedures in place to prevent this. However, this does not guarantee that the probate process will run smoothly, and you may need to seek legal advice to ensure that your estate is managed according to your wishes.
Below, we explain the duties and responsibilities of the executor of a will, what decisions they are empowered to make, and what you should do if disputes arise. If you have any questions we have not answered, our expert Wills and Probate solicitors are happy to talk to you regarding your query and provide the legal services you need. You can contact us by completing the enquiry form on this page or by calling 0151 666 9090.
What Is an Executor of a Will?
Choosing the executor of your will is one of the most important parts of estate planning. Usually, one or two people are chosen, although you can appoint up to four executors if you wish. The executors named are responsible for administering the estate (which includes everything the deceased person owned) and for distributing gifts to beneficiaries of the will.
The role of the executor is an important job, and there is often a lot of work to be done. When managing an estate, appointed executors may need to liquidate assets, sell property owned by the deceased, and manage other financial affairs. The executor will apply for a death certificate and a grant of probate, and liaise with everyone involved in the estate during the probate process.
After probate has been granted and any debts have been cleared, the executor can start to distribute the estate to the beneficiaries named in the will. If you are concerned about choosing an appropriate executor, it may be worthwhile to appoint professional executors to manage your estate; these may be solicitors or other professionals. By instructing a solicitor to deal with the probate process, you may be able to avoid any conflict that can arise between beneficiaries.
What Decisions Can an Executor Make?
An executor’s key role is to manage the deceased person's estate according to the provisions of their last will and testament. This means that in most cases, an executor cannot decide who gets what after a death.
Common tasks of an executor include:
- Registering the death
- Locating an original copy of the will
- Arranging funeral arrangements
- Gaining access to property
- Notifying banks, government services and other financial institutions of the death
- Valuing the estate
- Managing financial affairs
- Calculating and paying Inheritance Tax, if applicable
- Applying for probate
- Managing the estate assets
- Preparing estate accounts
- Distributing the estate to the beneficiaries
Read our guide on The Ten Key Tasks for an Executor to learn more.
On the other hand, things an executor cannot do include:
- Going against the terms of the will – including deciding who gets what
- Breaching their fiduciary duty to the beneficiaries
- Failing to act as an executor
- Stealing money from the assets of the estate
- Intentionally harming the estate
Another common question we are asked is, "Can an executor witness a will?" The answer is no. To be legally valid, a will requires two witness signatures, but these witnesses cannot be beneficiaries or executors of the will, nor people to whom they are related.
Can an Executor Decide Who Gets What in a Trust?
Many wills include trusts so that assets can be held on behalf of a beneficiary for a set time. The most common scenario accounts for a beneficiary who is under 18 at the time of death, or who lacks the mental capacity to manage their own money. Testators can nominate trustees to look after money on behalf of these beneficiaries until such a time as they are allowed to access it.
In this situation, the trustee has complete control over the assets and the income they generate. However, they cannot choose beneficiaries, and can only decide when to distribute assets to the specified beneficiary.
Further, a trustee must always act in the beneficiary’s best interest. A testator may specify exactly what a trustee can and can’t do in the trust agreement. You might specify what the trust provides each beneficiary, or give the trustees discretion over how and when they distribute funds.
Some uses of trusts include:
- Funding education for children or grandchildren
- Providing care for vulnerable loved ones
- Holding inheritance for a child or grandchild until they turn 18 (or older, if specified)
- Providing income or property for a second spouse during their lifetime, ensuring assets are then passed onto the children from your first marriage after death
When used correctly, trusts can be valuable in minimising Inheritance Tax liability for estates and also protecting your assets from creditors or divorcing partners. Trustees can also be beneficiaries.
Avoiding Potential Issues with Executors
While it is true that executors cannot decide who gets what after a death, problems may still occur. Beneficiaries may fall out with executors, and conflict may cause executors to act against your wishes or lead to will disputes. You can never truly predict how an executor will act after your death, but there are ways to keep arguments and disputes to a minimum.
You should always choose an executor who you trust and who is willing and able to take on the responsibilities of being an executor. This may be a family member, a close friend, or a professional executor like a solicitor, but you should ensure that they understand their responsibilities before you appoint them.
Always discuss appointing your executors with them before you die so there are no surprises when you pass away. You should only choose people you trust to carry out your specific instructions exactly as they are in your will. You should also consider whether your chosen executor has the time or mental capacity to act.
It is also often advisable to appoint more than one executor. This means that they can share the responsibility and keep each other in check if either one tries to going against your wishes. This will also help if one of the executors dies during the probate process.
If you are a beneficiary and you are not happy with how an executor is behaving, or you have concerns about their ability to carry out their role, you may consider filing a dispute claim with the court. In certain circumstances, you can apply to the court for an order to have the executor removed and replace them with someone else.
How Can Percy Hughes & Roberts Help?
At Percy Hughes & Roberts Solicitors, we have a team of dedicated wills and probate solicitors who are ready to help you resolve wills and probate queries as quickly and effectively as possible.
Choosing who will be appointed as your executor is a big decision; you must ensure that your wishes are carried out exactly as you have written them down in your will. While executors are not able to decide who gets what from your estate, they can delay the probate process if they try to do so. This is one reason why appointing professional executors is a useful approach.
Our probate solicitors have a wealth of experience in helping executors administer an estate after a death, and can support you in managing legal issues that may crop up during the probate process. We can assist you in this complex area of law and ensure you have peace of mind when it comes to your loved one’s estate.
Contact Percy Hughes & Roberts
To speak to our Wills and Probate team for advice, contact Percy Hughes & Roberts for a no-obligation phone consultation today. We provide ourselves on offering expert advice that's easy to understand, and we will be with you through every step of the legal process.