I had this case to deal with a while back and thought it might be interesting for people to see the kind of cases we deal with on a day-to-day basis and what is involved with being an Executor (Executrix) of people’s estates (along with how involved it can be) under the terms of their Wills in Brentwood and other locations throughout Essex. This is because it is something I am regularly asked about as part of Andrew Douglas Wills and Legal Services work on Wills in Brentwood and other parts of Essex for different clients.

(PLEASE NOTE – The names of the parties involved have been changed)

Albert (a man in his mid-80s) was in very poor health when he was unfortunately admitted to hospital where his youngest nephew Rodney came to visit. At this time apparently Albert told Rodney that he wanted to provide Rodney, his wife, Cassandra, and their newborn daughter, Joan, with a suitable home and this gave him a bunch of keys including the key to a Devonshire cottage and the key to a safe deposit box in the local bank where the deeds to the property are kept (the property is unregistered).

When his other nephew (Derek’s) wife, Racquel, later also came to visit Albert she wanted to pay him back the £500 that she had borrowed to buy a new car. However, Albert apparently told her not to worry as he does not want the money back. 

Albert was then visited by Racquel’s husband, Derek, and Albert told Derek that he was keen for him to take over as managing director of his company (Trotters Independent Traders). To this end, Albert then signed a share transfer form to transfer all his shares in his company to Derek and gave this form, along with the share certificates, to a nurse to post but she forgot to do because of the lateness of her shift.

Finally, Albert assembled his family at his bedside and told them he had decided to leave £50,000 to set up a philanthropic foundation to support small independent businesses and asked both of his nephews (Derek and Rodney) to be trustees alongside him to which they agreed. With this in mind, a trust deed to that effect was duly executed but a short time later Albert sadly died and his will was found a short time later that had appointed Derek’s wife, Racquel, as his executrix (female word for executor) who sought my advice.

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Racquel had a number of very specific duties and responsibilities as the executrix of Albert’s estate. For one thing it was necessary for her to look to take the appropriate steps to accept her office for the purpose of administering Albert’s estate by obtaining a grant of probate. At the same time, however, Racquel had to be advised about her powers and duties regarding the collection and regulation of Albert’s assets for the benefit of all of the parties involved before probate was even granted as the executrix. This is because Albert’s property effectively vested with Racquel from the time of Albert’s death. Then, as Albert’s personal representative, it was possible for Racquel to have got involved in running Trotters Independent Traders for the other parties involved if the property was not effectively transferred by Albert to Derek. The reason for this is because an executor could generally do before obtaining a grant of probate all things that are considered to be pertaining to their office.

However, Racquel also needs to be advised that she cannot be compelled to accept the office of  executrix regarding Albert’s estate under the terms of his will even if she were to have agreed to accept it in Albert’s lifetime. With this in mind, Racquel must advised that, whilst her appointment as executrix may be limited to certain subject matter, he appointment is generally for life. Moreover, Raquel also needed to be advised that, whilst the courts retain the power to bypass her position as an executrix and put an administrator in her place, she could also renounce probate if she did not wish to carry out the work involved.

Nevertheless, Racquel also needed to be advised she could carry out any acts considered to constitute an acceptance without making her liable. The reason for this is that the position taken in this regard is essentially a question of fact. Therefore, Racquel also needs to be advised – (a) the release of Albert’s debt; (b) the application, even where it fails, for the payment of money Albert was owed; (c) a statement answering a creditor; or (d) where Albert’s will has been proved and Racquel made the statement as an executor, are all forms of acceptance. At the same time, however, this kind of concurrence also involves accepting the trusts someone like Albert may have imposed like his telling Derek and Rodney he had decided to leave £50,000 of his money to set up a philanthropic foundation to support small independent businesses or which, in a court of equity, arise from the office Racquel will be taking. Moreover, there is also a need to note that, although an executrix like Racquel is a trustee for the creditors and beneficiaries in a case such as this, an executrix is not necessarily a trustee. Racquel’s position would then be aided by legislation to have been enacted and implemented. This is because, as has already been stated, Albert’s property would then vest with Racquel from the time of his death and probate then authenticates her title.

Nonetheless, regarding both the aforementioned £50,000 trust for the philanthropic foundation and the share transfer form for all of Albert’s shares in Trotters Independent Traders (along with the share certificates themselves), Racquel needed to be advised that generally every instrument purporting to be testamentary (or to affect a previous instrument) made by someone over the age of 18 of full capacity and executed in accordance with formal statutory requirements may be considered legal. These documents could then claim probate if it purports to dispose of property – even if Racquel were to take probate before renouncing it – where these instruments are usually executed in writing, signed by the testator (Albert) or someone else in their presence. On this basis, it needed to be clearly shown Albert intended his signature to give effect to the aforementioned documents where his signature was made or acknowledged by him in the presence of two or more witnesses that must also attest and sign the will or acknowledge their signature in Albert’s presence (although such documents remain ambulatory and revocable during their lifetime). With this in mind, Racquel also needed to be advised that all trustees had to hold an even hand between the parties that could be interested under the trust established by Albert along with those of the beneficiaries as a whole.. This is because the legitimate expectation of potential beneficiaries should be accounted for and the trustee must not be partisan to any one beneficiary.

Nevertheless, before any act of probate is granted, Racquel needed to be advised she may get in and receive Albert’s estate (and this could include the £500 she borrowed to buy her car) to administer it effectively but cannot proceed beyond when it becomes necessary to prove her title because the only evidence they have is the grant. In certain cases, however, Racquel also needed to be advised that small amounts of money may be disposed of by nomination or by payment to those seemingly entitled to them with no grant of probate required. Moreover, a grant of probate or letters of administration was needed for Racquel to administer, collect and protect Albert’s estate for his beneficiaries.

However, Racquel also had to be advised that anyone who takes possession of, and in any way administers, any part of the estate and effects of someone like Albert who has died without obtaining probate within a prescribed time (i.e. within six calendar months of death or two calendar months after the termination of any suit or dispute regarding the will or the right to letters of administration) may have had to forfeit a small sum of money (approximately £100) by way of a penalty. Additionally, Racquel was duty bound by her role to hold an even hand between all of the beneficiaries identified for Albert’s estate to avoid accusations of bias. This is because, in exercising the powers conferred upon her, personal representatives like Raquel and trustees like Derek and Rodney must consider all of the beneficiaries rights.

Where Racquel obtained a grant of probate she needed to be advised it was her duty to pay Albert’s debts including any unpaid income tax, capital gains tax, and inheritance tax. Racquel also had to be advised to deliver to the Inland Revenue an account specifying all appropriate property and its value for calculating inheritance tax, whilst the burden is borne by those who are inheriting property under Albert’s will as his beneficiaries. Therefore, Racquel needed to be advised where the account of Albert’s estate was to be delivered by her as a personal representative, the appropriate property was everything that formed part of Albert’s estate before his death. However, where the account is to be delivered by someone who is only the executrix of the deceased regarding settled land in the UK, the appropriate property is anything to which tax is or would be attributable under Albert’s will and the Inheritance Act 1984.

Racquel is also to be advised where liability falls upon a personal representative that is limited (a) so far as the tax is attributable to property which, immediately before Albert’s death, was comprised in a settlement and consists of land in the UK, so much of that property as is at any time available in her hands, or might have been but for her own failings and (b) so far as the tax is attributable to the value of any other property, the assets she received as personal representative or might have received but for her own failings. However, all circumstances needed to be accounted for because there was a duty owed to Albert’s creditors and his beneficiaries so, by way of illustration, all of Albert’s debts had to be paid within a year of his death. Therefore, due diligence had to be shown on Racquel’s party and, if they are not paid within that time, then Racquel would need to justify this. This is because, from the information available, Racquel could make provision for this from Albert’s pool of assets.

Moreover, Racquel was also duty-bound to provide a full inventory of Albert’s estate and render an account of its administration to the court. The reason for this is because any interest in the estate of a testator is sufficient to support an application for an inventory. However, Racquel also needed to be advised that, since when his nephew Rodney had come to visit him Albert had given him a bunch of keys that contained not only the key to a Devonshire cottage but also the key to a local bank’s safe deposit box where the deeds to the property are kept, the transfer of shares in Trotters Independent Traders to Derek, and the establishment of the philanthropic trust, the courts could only really require the property of which Albert actually possessed to be included. The reason for this is that it has been found that where property to be given under the will was no longer within Albert’s power of disposal when he died, then Racquel had to be advised the gifts that had been made were considered adeemed since the testator cannot be said to have intended to provide ‘double portions’ of any property to be distributed.

Finally, Racquel then needed to be advised such a view has arisen where property that would otherwise fall to be distributed under Albert’s will is no longer in his possession is because it has come to be understood a specific gift may be adeemed by its subject matter ceasing to be part of the testator’s estate or their right of disposition. Therefore, no conveyance or other subsequent act by Racquel relating to property comprised in the will prevents it from operating regarding the estate or interest in property of which Albert had the power of disposal at the time of his death. However, Racquel still had to be advised a creditor could come in at any time where assets remained to be distributed; so long as she has not been guilty of willful default and she was not allowed to disturb prior distributions or delay the payment of dividends to the other creditors.

With this in mind, you are advised to seek assistance from a service provider like Andrew Douglas Wills and Legal Services to give you further advice about the preparation of Wills in Brentwood and other locations throughout Essex with a view to protecting yours and your family and loved ones best interests.

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