Executor duties and rights

Insights

3rd Feb 2025

The role of executor carries significant responsibilities and potential personal liability. Understanding these duties and how to handle common problems is essential for anyone taking on this important role.

Core executor duties

The fundamental obligations of an executor encompass a wide range of responsibilities, from gathering information to making key decisions about estate administration and put simply, ensuring beneficiaries interests are protected.

Under English law, executor duties primarily derive from the Administration of Estates Act 1925 and Trustee Act 2000, supplemented by extensive case law establishing fiduciary obligations and standards of care and equitable principles requiring impartiality and proper accounting. Specific roles and duties may also be included in the will.

Well established executor duties are :-

Collect and preserve estate assets
Pay funeral expenses
Apply for probate where required
Identify and pay estate debts and taxes
Calculate and pay inheritance tax
Prepare estate accounts
Distribute estate according to will/intestacy
Act impartially between beneficiaries
Exercise reasonable care and skill
Keep proper records and accounts
Not profit personally from the role
Maintain confidentiality about estate matters
Invest assets appropriately during administration
Protect estate assets - often through insurance/security
Deal with any estate income tax/CGT issues
Comply with statutory deadlines for tax/administration
Act jointly if more than one executor appointed
Respond to reasonable beneficiary information requests
Keep estate money separate from personal funds

Duty to collect and manage information

One of the executor's primary responsibilities is to collect, organise, and maintain accurate information about all aspects of the estate. This includes :-

Asset identification - the executor(s) must conduct a thorough investigation of all property, investments, and other assets owned by the deceased, including checking bank statements, investment accounts, property deeds, and other financial records.
Debts - a comprehensive search for and verification of all debts owed by the deceased must be undertaken, including mortgages, loans, credit cards, and any informal debts.
Beneficiaries - current contact information and identification details for all beneficiaries must be maintained and regularly updated throughout the administration.
Document retention - all important papers, correspondence, and records relating to the estate must be preserved and organized systematically for future reference

Are executors subject to timelines or deadlines?

Several key statutory and practical timeframes must be observed :-

Inheritance Tax - HMRC requires submission of the inheritance tax account within 12 months of death, though payment may be required sooner for certain assets
Estate administration - while there is no fixed legal deadline for completing administration, executors must show reasonable progress and may face court action if they delay unreasonably
Section 27 Notices - when placed in the Gazette and local paper, these notices protect executors from unknown creditors but require a two-month waiting period
Tax returns - various tax filing deadlines apply for income tax, capital gains tax, and other tax obligations of both the deceased and the estate

Executor duties where beneficiaries are hard to locate

There is no specific duty on executors in relation to this but the overarching principles described above mean that an executor will need to be thorough, When beneficiaries cannot be located, several options exist:

Professional genealogist engagement: Specialists can trace family members through historical records and databases
Missing beneficiary insurance: Insurance can protect executors against future claims from beneficiaries who surface later
Section 27 Notices: Advertising in the Gazette and local papers can protect against unknown claims
Benjamin Order application: Court order allowing distribution despite missing beneficiary, though costs can be significant

Unknown Assets

Various approaches can help identify all estate assets:

Bank account searches through Unclaimed Assets Register: This central database can reveal forgotten accounts
Land Registry searches: These can identify property ownership across England and Wales
Share registrar investigations: Company registrars can help locate shareholdings
DWP benefits enquiries: These can reveal any unclaimed benefits or pension entitlements

Uncertain debts

Managing uncertainty about estate debts requires careful planning :-

Statutory advertisements: Placing notices for creditors provides legal protection
Reasonable waiting period: Allowing sufficient time for claims to emerge before distribution
Retention of contingency fund: Keeping back sufficient funds to meet possible future claims
Indemnities from beneficiaries: Getting beneficiaries to agree to return funds if needed

Do executors also have legal rights?

Yes, executors under English law have specific rights to help them fulfill their duties. Here are the key legal rights, broken down by whether they are statutory rights or from established case law.

Statute based rights (primarily Administration of Estates Act 1925 and Trustee Act 2000)

Right to sell/transfer estate property (s.39 AEA 1925)
Right to seek court directions (s.35 Trustee Act 1925)
Right to reimbursement of expenses (s.31 Trustee Act 2000)
Right to employ agents/professionals (s.23 Trustee Act 2000)
Right to insure estate assets (s.19 Trustee Act 1925)

Case law rights

Right to deal with assets before probate
Right to reasonable time for administration
Right to retain assets for liabilities
Right to withhold distribution

Mixed source rights (both statute and case law)

Right to bring legal actions (s.35 Trustee Act 1925 and various cases)
Right to require release before distribution (both case law and practice rules)
Right to access deceased's information (various financial services regulations and case law)