Who should be your executor?
An executor is easy to name in a moment, often the eldest child or the oldest friend, and the job is months of paperwork, hard deadlines and the risk of personal liability for getting it wrong, so it is worth more thought than that. This page is general information about how executors work in England and Wales: it is not legal or tax advice, and we are will writers rather than solicitors.
What the job actually involves
An executor is the person who carries out your will. In practice that means finding the will and the death certificate, tracking down every account, pension, policy and debt, valuing the estate, applying for probate where it is needed, paying what is owed, then dividing what is left and keeping a record of it all.
It is administration, not a ceremony, and it runs on deadlines. Where inheritance tax is payable, the main deadline is the end of the sixth month after the month of death (GOV.UK, "Pay your Inheritance Tax bill"), which can fall before probate is granted, though tax on some assets, land and businesses among them, can be paid in yearly instalments instead. Executors can be held personally liable for getting it wrong, including for paying out to beneficiaries and then meeting a creditor nobody knew about. There is a protective step for that, advertising for unknown creditors in The Gazette under section 27 of the Trustee Act 1925, and in a local paper where the estate includes land, then waiting at least two months, though it only protects the executor against claims they knew nothing about. Somebody has to know to take it.
It is rarely quick work. Beneficiaries cannot generally insist on being paid within the first twelve months after death, the period known as the executor's year, so an executor who is doing the job properly can still look slow to a family that is waiting.
Who can be an executor, and who cannot
The bar is low. Anyone aged 18 or over with mental capacity can act. You can name a 16 year old, but probate cannot be granted to anyone under 18, so if they are still a minor when you die, someone else has to take a grant in the meantime.
A common misconception is that an executor must not benefit from the will. That is wrong, and in practice the opposite is common: it is entirely normal for an executor to also be a main beneficiary. The rule people are half remembering applies to witnesses. Under section 15 of the Wills Act 1837 a gift to a witness, or to a witness's husband, wife or civil partner, is void, though the will itself stays valid. The gift can be saved where the will was properly witnessed by two other people as well, but a solicitor should be asked before anyone depends on that. Your executor can inherit. Your witness cannot.
A criminal record does not automatically disqualify anyone, and neither does bankruptcy, though naming someone with unmanaged debts to handle other people's money invites a problem. Where there are special circumstances the court can pass over a named executor and appoint someone else, but that is a remedy for a mess, not a plan.
How many to appoint
One executor is legally sufficient. Naming two is the usual advice, because one person can be ill, abroad, estranged or dead by the time it matters. Beyond that, note the ceiling: under section 114 of the Senior Courts Act 1981 a grant cannot be made to more than four people in respect of the same part of the estate. Naming six does not give you six, it gives your family an argument about which four.
There is one situation where two is close to essential. If your will leaves anything to a child under 18, or sets up a trust that carries on after the estate has been wound up, someone then holds that money as a trustee, sometimes for years. Capital money from the sale of land held on that trust has to be paid to at least two trustees or to a trust corporation, so a sole trustee cannot give a valid receipt for it. A sole executor can still sell and give a valid receipt while acting as executor, which is why this is easy to miss: the problem does not appear during the administration, it appears later, once the trust is running. Naming two at the outset is simpler than arranging it after the death.
Balance that against the cost of disagreement. For most dealings with money and possessions, any one executor can act for all of them, which carries its own risk, but every executor who took the grant has to join in a sale or transfer of land. A deadlock between two siblings who cannot agree on selling the house is expensive and slow. Two people who trust each other beats four who do not.
If they die first, or say no
If an executor dies before you, the will does not fail. The appointment simply falls away and any surviving executors carry on. If nobody named is able or willing to act, the people who inherit the residue of the estate can usually apply to administer it under the terms of your will, so your wishes still stand, but with more delay and less choice.
A named executor can also refuse. Provided they have not started dealing with the estate, they can formally renounce by signing a form of renunciation and filing it at the Probate Registry, and once it is filed they can only go back on it with the court's permission. Starting to deal with the estate means anything beyond arranging the funeral or steps taken purely to protect property: past that point, they have lost the right to walk away. There is a middle option too, provided at least one other executor is proving the will: an executor can have power reserved to them, standing aside while the others act but keeping the right to step in later.
Naming a substitute covers the most common of these situations. Name a substitute: if the first choice cannot or will not act, the appointment passes to the second. It removes a common reason an estate is left with nobody named to act.
One more thing worth checking on an older will. If your marriage or civil partnership has ended in divorce, dissolution or annulment since the will was made, the appointment of your former husband, wife or civil partner takes effect as though they had died on that date, and gifts to them are treated the same way. Separation alone does not do this. Marriage or a civil partnership cuts deeper than divorce: it revokes the whole will, unless it appears from the will that it was made expecting that marriage or civil partnership to that particular person and was intended to survive it. If you have married or entered a civil partnership since your will was made, this is worth checking with a solicitor before you rely on it.
Professional executors, and what they cost
You can name a solicitor or a trust corporation, including a bank's trustee company, in the will instead of a family member. The charging basis is worth reading first. Charges are set by the firm and vary: some are based on the time the work takes, some on a percentage of the value of the estate, and some on both. Ask for the charging basis in writing before you sign a will that names them.
A percentage scales with the size of the estate, not with the difficulty of the job. Ask for both bases in writing and put a likely estate value through each to see which works out cheaper.
The point that is easiest to miss is that you do not have to appoint a professional to get professional help. A family executor can instruct a solicitor or a probate specialist after the death and pay the fees out of the estate, compare quotes first, and change firms if the service is poor.
There are still cases where a professional earns it: nobody suitable to ask, a family where a fight is likely, a trust that runs for years, or a business that has to keep trading. Those are decisions worth taking legal advice on rather than guessing at.
Before you name anyone
The choice is worth more thought than it usually gets. Run through these questions before you write a name into the will.
- Have you actually asked them, and are they willing to do it?
- Do they know the will exists, and where the original is kept?
- Are they likely to still be well, contactable and capable in twenty or thirty years?
- Can they cope with forms, HMRC deadlines and bank paperwork, or sensibly instruct someone who can?
- Do they get on with the people who inherit, or are you putting them in the middle of an argument?
- Have you named a substitute in case your first choice cannot act?
- If anything goes to a child under 18, or your will sets up a trust, have you named at least two people who could act as trustees?
- If you have married or entered a civil partnership since your last will, has anyone checked whether that revoked the whole will, executor appointment included?
- If you have divorced or dissolved a civil partnership since your last will, does it still name your former husband, wife or civil partner?
What a will cannot do here
This page is general information, not legal or tax advice: we are will writers, not solicitors. There are also real limits on what naming an executor achieves, and cases where you should take legal advice before you decide.
- A will cannot make anyone act. Naming someone is an offer. They can refuse after your death and are under no obligation to explain why, which is why asking them first matters more than the wording.
- A will cannot control how well the job is done. If an executor is slow, secretive or careless, the remedies all come after the fact: a beneficiary can ask the court to order the executor to produce a full inventory and account of the estate under section 25 of the Administration of Estates Act 1925, and beyond that apply to court for more, funding it themselves at the outset, with costs then at the court's discretion.
- Removing an executor after death is difficult. Before a grant is issued, the court can be asked to pass a named executor over under section 116 of the Senior Courts Act 1981. Once a grant has been made, it normally takes a court order under section 50 of the Administration of Justice Act 1985. Choosing carefully now avoids the cost and delay of a court application after the death.
- See a solicitor before appointing anyone if your will sets up a trust that will run for years, if you own a business or farmland, if you own property abroad, if inheritance tax is likely to be an issue, or if you expect the will to be challenged. Who acts, and how they are paid, is part of that advice.
- This page covers England and Wales only. Scotland and Northern Ireland work differently, including who can act, what the grant is called and what a surviving spouse, civil partner and children are entitled to. If the estate is in Scotland or Northern Ireland, take advice there.
Common questions
Can my executor also inherit under the will?
Yes. Appointing the person who inherits most of the estate is permitted. The rule that catches people out applies to witnesses, not executors: under section 15 of the Wills Act 1837 a gift to someone who witnesses the will, or to their husband, wife or civil partner, is void, even though the will itself stays valid. So an executor can inherit, which is why a beneficiary, or a beneficiary's husband, wife or civil partner, is the wrong person to witness a signature.
Do executors get paid?
A lay executor can claim genuine out of pocket costs back from the estate, things like the probate fee, valuations and postage, but is not normally paid for their time unless the will allows it. A professional executor charges, and the will should set out the basis. Separately, an executor can pay a solicitor or probate specialist out of the estate to do the work for them.
How many executors should I appoint?
One is legally enough. Two is the usual answer, with a substitute named behind them, so illness, a falling out or a death does not leave the estate stranded. No more than four people can take a grant of probate in respect of the same part of an estate, so naming six does not give you six.
Can my executor live abroad?
Nothing bars it, though it is slower, because identity checks, original documents and property paperwork all take longer across a border, and the executor may need to travel. Where the will also sets up a trust that carries on, take advice first: trustees living outside the UK can change how that trust is taxed. If your first choice lives overseas, a second executor in England or Wales alongside them is a common way round it.
Start when you are ready
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