The Rights and Responsibilities of the Executor
by Bianca McCormack
The role of the executor is not one to be taken lightly. The executor must act upon the wishes of the testator by collecting assets, paying liabilities and distributing the testator’s property according to the terms of the will. However, these responsibilities are balanced with certain rights which assist the executor in carrying out these duties.
Executor as a Fiduciary
The executor is in a fiduciary relationship with the beneficiaries of the estate. This means that duties must be discharged with due care and with loyalty to the beneficiaries. The duties of the executor include the following:
- disposing of the body;applying for a grant of probate;
- collecting in the assets of the estate;
- discharging the deceased’s liabilities;
- settling claims or other liabilities;
- distributing estate assets; and
- keeping proper accounts;
With respect to the settlement of claims, the executor should not distribute the estate within six months of obtaining the grant of probate. This is the time frame within which a person may make a claim for further provision from the estate. Pursuant to Part IV of the Administration and Probate Act 1958, if the executor distributes the estate within the six month period, they will be personally liable for any award of further provision made. However, this personal liability is subject to a right of recoupment from the beneficiaries who received the distribution.
Rights of the Executor
Despite the many responsibilities held by the executor, there are also certain rights, such as the right of recoupment noted above. Another such right is the ‘executor’s year’, whereby the executor is given one year from the date of death within which to make any distributions from the estate.
Additionally, an executor may claim commission for efforts in the administration of the estate. However, unlike the ‘executor’s year’, executors are not entitled to commission as of right, and in the absence of the residuary beneficiaries agreeing a figure for commission, it is necessary for executors to apply to the Supreme Court to have the Court fix the rate for commission. The maximum rate at which the Court may fix commission is 5% of the gross value of the estate, but in our experience the Court is not likely to award a private executor commission at a rate greater than 2.5% of the gross value of the estate. A will maker should give careful consideration to the appointment of an executor, especially when appointing a professional executor.
Hicks Oakley Chessell Williams