Executors of an estate have an obligation to engage in the due administration of the estate. Enormous obligations are cast upon an executor to gather in the estate, pay all testamentary debts and expenses and to distribute the estate in a correct and legal way.
Executor Applies For Grant of Probate
Probate is process of managing the estate and assets of a deceased person. A grant of probate is an order of the court that the executor named in the deceased person’s will is entitled to administer the estate.
A grant of probate is also the court’s official recognition that the will is valid under the law.
Executors Are Responsible for the Administration of the Estate
After a Grant of Probate is obtained, the executors are bound to gather in the estate. This term means that the assets owned by the deceased person must be placed in the legal name of the estate. For example, a bank account owned by John Smith would be placed in the name of the executor on behalf of the estate of John Smith.
As part of the administration of the estate, it may be necessary to sell assets so that all debts and estate expenses may be paid. In some cases, it is very unhelpful for assets to be sold as part of the administration of the estate and it may be more helpful for them to be kept intact and appropriated to beneficiaries as part of their inheritance.
There may be confusion as to which parts of the estate are to be used for the payment of debts and expenses.
An executor may discover that a deceased person failed to keep up to date with their taxes or erroneously made a claim on social security. In both of these examples the executor is bound to discharge the obligations of the estate in paying all taxes that ought to be paid. If the executor fails to do this, the executor will be personally liable. Similarly, with regard to social security that ought not have been claimed, it will be necessary for the executor to negotiate with the relevant government department concerning a refund of the overpaid social security or a release.
The administration of the estate may include defending a family provision claim or other estate litigation. It may also mean enforcing the rights of the deceased, such as seeking to set aside gifts and other transfers that the deceased made due to undue influence or a deterioration in capacity.
The administration of an estate is often complex, and should always be done in conjunction with sound legal advice.
It’s important to remember that failure to administer the estate appropriately may result in the executor being personally liable for their oversights.
Construction & Rectification of Wills
Wills are not always straight forward documents. Executors may find errors in the will or ambiguity around certain parts of the will.
The wording of the will could contain an administrative error on the part of the solicitor who prepared the will. In this instance, the executor will need to prepare an application to the court for the will to be rectified so that it more accurately reflects the instructions given to the solicitor.
Sometimes the words used in a will are ambiguous and are capable of a number of different meanings. In this case, it is necessary to request the court to find meaning in the words (called a construction application). It is not up to the executor or a solicitor to make this decision. In the absence of a construction application, an executor will continue to be exposed in acting under what the executor sees as the preferred construction of the Will. In such an example the executor would be personally liable.
It is wise where there is ambiguity in a will or where it does not say things you believe it should say to get urgent legal advice.