The role of Executor and Administrator

The Role of the Executor

Taking on the role of Executor or Administrator involves first and foremost acting in a fiduciary capacity. This means honouring the wishes of the deceased, acting honestly , in good faith according to the law of the land and in the best interests of the beneficiaries. If you follow these principles, you are unlikely to fail.

Communicating with the beneficiaries of the will or the family members is vitally important. Most will probably wish to know how much they are getting and when will they get it! As the process of winding up an estate can involve long delays, especially if you are undertaking the task yourself, you will need to keep everyone up to date on progress as you proceed. They will ask a lot of questions. Why should they have to wait so long? Who pays the funeral bill? Why should Johnny be allowed to continue to live in the house? Who gets the car? Can I have that ring she always wanted me to get? Mary has taken stuff from the house, what are you doing about that? Can I get an advance now?

 What does the Executor or Administrator do in a nutshell?

• Ensure the funeral arrangements are put in place.
• Locate, read and understand the will;
• Identify the beneficiaries;
• Make an inventory of all assets;
• Decide if probate is necessary and commence the procedure;
• Notify the Banks, credit Card company, utility company, insurance company and all relevant persons;
• Notify the beneficiaries of the will or the next of kin if there is no will;
• Secure and protect the assets while they are under your control;
• Obtain the Grant of Probate or Administration from the Probate Office;
• Collect all funds belonging to the deceased or owed to the estate;
• Pay off all debts funeral testamentary expenses;
• Sell any assets such as property or shares if necessary;
• File tax returns;
• Consult with the beneficiaries for their views on any issues that may arise that affect them;
• Prepare the final Executor’s Accounts;
• Distribute the estate.

What if there is no Will?

Many people die without having made a Will. This is called an intestate estate. It is still necessary to make an  application to the Probate office for permission to take control of the assets of the deceased. The document that will issue is called a ‘Grant of Administration Intestate’. The Succession Act 1965 sets out the rules about who can apply for the Grant of Administration and also directs who is entitled to a share in the estate where there is no will. If the deceased died intestate then you will be required by the Probate Office to enter into a Bond which is a personal commitment to administer the estate in accordance with the law.

What are my legal obligations?

Once your appointment as an Executor or Administrator has been approved by the Probate Office and the Grant is issued, you then become responsible for property and money that belongs to the beneficiaries in the will or the next of kin. There is nobody there to supervise your activities. The Law requires you to act honestly and in good faith. There are rules and regulations for you to follow before you hand over the assets to those entitled.

An executor or administrator has a fiduciary duty which requires him or her to act in the best interests of  the beneficiaries or next of kin. This means that you cannot act in your own best interests and you must apply the highest ethical standards to your task.

The following are examples of what you may or may not:

• You are not entitled to payment for your services unless the Will expressly provides for this.
• You may not make a profit from your association with the estate of the deceased. You may however recover your expenses reasonably incurred.
• If you wish to purchase an asset from the estate you must proceed with great caution and be seen to follow an open and fair competitive tender process with the consent of the beneficiaries who will inherit the proceeds of that sale.
• You must act as a prudent business person would act in the conduct of his own affairs.
• You must not invest in hazardous assets such as volatile shares or fluctuating markets.
• You must take into consideration the interests of all beneficiaries and treat them all equally.
• You are obliged to provide detailed information to residuary beneficiaries in relation to the management of the estate and the accounts. A residuary beneficiary is the person or persons who take what is left over after all the debts are paid and the specific legacies are paid.
• You must make every reasonable effort to get the estate wound up within a year of the date of death.
• You must account to the beneficiaries for interest on their entitlement after a year has passed.
• You must keep careful records of everything you do.
• If you have to delegate work to professionals or experts you must choose them with care.
• You must prepare an Estate Account at the end in which a full picture of all financial transactions is clearly set out.

Should you fail to honour your duties and follow the rules you are vulnerable to being sued by the beneficiaries or even to being removed by a court from your position as executor or administrator. You may also be obliged to compensate the estate for any losses and to return property or assets.

At O’Shea Legal we have over thirty years experience helping clients through this difficult process. With a Diploma in Trusts and Estate Management our firm principal has the experience and qualifications to handle any complications and we are focused on getting the job done quickly in order to remove as much stress and anxiety.

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