Making a WILL – The Executor’s duty

We are living in an age where the majority of the population are better off than previous generations, and most people will posses assets at the time of their death. Wills give instructions that are legally enforceable, on the appointment of an executor and on how assets should be distributed. It is an executor’s duty to ensure that the wishes of the deceased are carried out. If the deceased has not bothered making a will – ie dies “intestate” – then there are rules which dictate how the money/ property of the deceased are distributed. The rules detail who is entitled to claim the assets of the deceased using a Grant of Administration issued upon Application to the High Court.
If no relative qualifies under the rules of intestacy, the Crown may be able to take everything. It is therefore important that almost everyone leaves formal instructions on how they require their assets to be dealt with after death. Failure to do so may mean that the deceased person’s assets are distributed in a way that they would not have distributed them during their lifetime.

Making a WILL

There is no requirement to use a Solicitor when making a will – in fact many people write their own wills using reference books or ‘do it yourself’ packs – in exactly the same way as there is no requirement to use a dentist to extract a tooth… but would you rather not leave the job to the professionals?The rules and regulations in this area are extremely complex, and there are numerous pitfalls for the unwary. In the legal profession, it is considered that Solicitors make more money sorting out messy or unenforceable instructions than they do dealing with accurate and properly drafted and executed documents. The most common errors made by the layman include:-

  • being unaware of the precise requirements necessary to execute and sign the document
  • failing to distribute all of the assets which may allow the Crown to make a claim
  • failure to give instructions on how to re-distribute assets in the event of a beneficiary dying
  • altering a will improperly after initial execution
  • not taking account of changing relationships including marriages, divorces, births and The Civil Partnership Act.
  • failure to consider that dependents may have a prior claim on the estate
  • revocation of a Will
  • Wills can be destroyed physically by the testator or by someone acting on their behalf and are thereafter of no consequence. Accidental damage, however, does not cause revocation. They can be altered by addendum called a codicil which must be properly executed.

Appointment of Executors

Executors are appointed by the testator (the person whose Will it is). An executor’s duty includes having responsibility for carrying out the wishes of the deceased. Their job is to collect all assets in accordance with the deceased’s instructions, and thereafter pay all debts and distribute the net assets to the beneficiaries. Except in the most simple of cases, most executors do not deal with this job on their own, but instruct a Solicitor to act on their behalf, as the probate usually involves considerable paperwork.

Executors can be solicitors, bankers or accountants or trusted members of the public including family or friends.

Disputed Wills

We also deal with contested probate cases where, either the validity of the document is called into question, or there is a claim from someone who was not included in the will (and who is claiming as a dependant).
If you would like advice on any of these matters either complete the contact form or call the helpline and a solicitor will discuss your needs and give initial advice at no charge and without further obligation.

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