If you have been named as the executor of someone’s Will, you have certain legal responsibilities and duties. In this article, we answer some common questions.

If you have a more specific question about your responsibilities, please get in touch.

How quickly do I have to register a death?

The death should be registered as soon as possible. This is not the executor’s responsibility (unless there is no one else who can do it) but you should ensure that you obtain the death certificate.

You may be asked how many copies of the death certificate you would like. Having at least 3 or 4 copies can make the process of dealing with several institutions (banks and building societies, utility companies) possible at the same time. The Tell Us Once service can help with some of your administrative workload.

What information will I need to act as an executor?

Who should arrange the funeral?

The funeral arrangements are not an official responsibility of an executor unless you are a member of the deceased’s family or the close relatives ask you to deal with them. You should check the Will to see if the deceased expressed a preference about their funeral, although if their choice is impossible or impractical, you are not bound to it.

The Will may contain a reference to a funeral plan; if the funeral was not prepaid or covered by special insurance, the cost can be met from the deceased’s assets. The deceased’s bank or building society will arrange to pay the bill immediately, provided enough money is in their account.

Is a Grant of Probate needed?

Some assets may be dealt with without the need for a Grant of Probate.  If the deceased had jointly owned property or accounts, these can usually be transferred to the surviving joint owner by producing the death certificate to the relevant organisation. If the deceased had life policies or death in service benefits, these would usually be paid to the people named on the policies or nominated to the trustees on the production of the death certificate.  A life policy that benefitted the deceased or names a beneficiary who has died will usually be paid to the deceased’s estate. The Executor may need to produce a Grant of Probate.

Small bank or building society balances, National Savings certificates and Premium Bonds may be cashed in without a Grant of Probate – it's best to check with each organisation.

How do I find a Will?

The first place to look to find the location of a deceased person's Will is with their private papers. If you find a copy of a Will, it's likely the original has been stored securely with the firm that drafted it, with National Will Safe, or with the Probate Registry. National Will Safe provides every testator with plastic cards to give to their executors - these are printed with the details of storage and a telephone number to call to retrieve the original Will. The Probate Registry supplies a paper receipt.

You will need the original Will, even if you do not apply for a Grant of Probate. If a legal firm, bank or storage company is holding the Will, you will need to provide an original death certificate to obtain the Will. If there’s more than one Executor, the authority of all the Executors will be required to release the Will to one of you.

If you think the deceased made a Will, but you do not know where it is or cannot find the original, you must make enquiries. You can search the national wills database called Certainty.

An Executor can be held personally liable if assets in an estate are distributed before all debts are paid. This can be avoided by placing statutory notices (the law determines how and where) and giving a deadline for creditors to contact the executor to make a claim.

Seek legal guidance if you cannot find a Will, but you suspect the deceased made one at some time in their life.

Do I need to get the deceased’s assets valued?

The executor is responsible for dealing with anything and everything owned by the deceased at the date of death.  You will need to make sure that assets are kept safely for the beneficiaries who are entitled to them. If the deceased left a house that is now empty, you would need to contact the insurers to notify them of the death and ensure that insurance for the building and the contents are continued. Again, the insurance cost can be taken from the deceased’s estate.

You will need to find out exactly what property and money the deceased had when they died and any debts they may have owed.  If the total comes to more than £325,000.00, you will need to complete Inheritance Tax forms, and the HM Revenue and Customs will likely want formal valuations of any land or property, personal belongings such as jewellery and furniture, and stocks and shares. The cost of the valuations will be an expense of the estate. If the assets are worth less than £325,000, you may not need formal valuations, although you should remember that the Probate Registry will need some indication of the estate's value for their records. Beneficiaries could ask you to obtain formal valuations if there is a dispute.

Who pays any debts?

The executor is responsible for making sure that outstanding debts left by the deceased are paid. This must be done before any money is paid to the beneficiaries mentioned in the Will.  Don’t forget to find out about credit cards and the utility bills: gas, electricity, council tax, water, broadband, and telephone. The deceased may also owe money to the Benefits Agency if state benefits were claimed; a pension provider, employer, or the Inland Revenue.

What if there is not enough money to pay the bills?

If there is not enough money in the estate to pay all the debts (an insolvent estate), the executor will not be held personally liable. Still, it would be best if you were prepared to show that there is insufficient money available. The funeral and testamentary expenses are the first bills that should be paid. All other debts take second place to these. If there is enough money to pay debts but not quite enough to pay the gifts mentioned in the Will, a specific procedure must be followed.

The debts of an individual are not usually inherited by their family if they are in the sole name of the deceased, but there are two main exceptions to this:

• A third party guarantee on one of the deceased’s loans would make that third party liable for the total remaining debt.

• Money that has been ‘gifted’ by the deceased up to seven years before their death could be viewed as an attempt to avoid paying creditors

For jointly owned property, responsibility for mortgage repayments and joint utility accounts revert to the joint owner, who must take on the full payment amounts. A charge may be placed against property held in joint names.

This is the order of priority for paying creditors from an insolvent estate:

1. Secured creditors

2. Funeral expenses

3. Testamentary expenses

4. Preferential creditors

5. Unsecured creditors

6. Interest due on unsecured loans

7. Deferred debts, for example, between members of the family

What is a Grant of Probate?

If the deceased owned assets worth more than £5,000, it is likely that a Grant of Probate will be necessary. A Grant of Probate is the document that proves that the Will is valid and that the executor named on the Grant is entitled to deal with the deceased’s property and distribute it as set out in the Will.

The executor will need to show the Grant or an official copy to close down bank accounts, authorise the transfer or sale of shares and other investments, and sell land or property. The Grant is obtained from the Probate Registry (or a District Office), and the Executor will have to swear an oath confirming their duties and the value of the estate. A fee will be payable. A legal professional can obtain the Grant for you, or you can apply in person. You will need to produce the original Will and the death certificate in either case.

How quickly do I have to act as an executor?

Having collected all assets and dealt with all debts, including income tax, capital gains tax and inheritance tax, the executor may distribute the estate according to the Will. The executor is not required to distribute any assets within one year of the date of the Grant of Probate, although many estates are dealt with more quickly. If distribution takes place within six months of the date of the Grant, the executor could be held personally liable if the Will is then challenged – perhaps by a beneficiary assumed to be dead or by someone who feels they should have been provided for by the deceased.

What records does an executor have to keep?

The executor has a duty to the beneficiaries of the Will and should be prepared to justify how they have dealt with the estate.  Keeping accurate accounts is essential. The accounts will include legal fees, Probate Registry fees, estate agent fees for selling a house, and the executor’s expenses such as postage and telephone calls. Unless the Will specifically allows it (this means it contains a charging clause) or unless the beneficiaries agree to it, the executor cannot claim payment for their time and effort.

What happens if there are young children named in the Will?

Wills often include gifts to children and may state that a gift will not take effect until a certain age is reached. In these cases, the trustees (often the same people as the executors) will usually be charged to hold the gift in trust until the child reaches 18 or the age mentioned in the gift. The trustee will have other duties, powers, and legal requirements until the trust is ended. The Will may include these specifically, and more are imposed by law. If you are appointed as a trustee, and there are minor beneficiaries named in the Will, seek legal guidance. If a trustee acts or fails to act in breach of these duties, the trust's beneficiaries may be able to sue them personally. This is a complicated area of law, and legal advice should be obtained if a Will creates a trust.

Is it possible to change a Will once someone has died?

It may be possible to vary a Will using a Deed of Variation. This could be for tax purposes, although it can be done for other reasons, and a legal professional will need to be involved. All the beneficiaries affected would need to agree to the Deed of Variation, and a court order would be required if any affected beneficiaries are minors or lack mental capacity. If the estate is taxable, the Variation must be registered with the Inland Revenue. Seek legal advice before attempting to do anything that alters the terms of the Will.  A valuation for tax purposes must be made two years from death.

How do I know if the Will is valid?

The legal requirements for a Will to be valid are set out in the Wills Act 1837. For a will to be valid:

• it must be in writing, signed by the person making the Will (called a testator or testatrix), and witnessed by two people

• The testator must have the mental capacity to make the Will and understand the effect it will have at the time of making the Will.

• The testator must have made the Will voluntarily and without pressure from anyone else.

• The beginning of the Will should state that it revokes all others.

  If the deceased did not make adequate provision in their Will for close family members, or if there is any doubt over the validity of the Will, the Will may be challenged, or a claim under the Inheritance (Provision for Family and Dependants) Act 1975 may be made. Legal advice should be obtained. The Executor’s legal expenses can usually be deducted from the assets in the estate.

What happens if there is no Will?

Where a person dies without a Will, or the Will is invalid, they die intestate. There are legal rules that dictate who can apply for a Grant. Where there is no valid Will, the Grant is known as a Grant of Letters of Administration. The person dealing with the estate is called an administrator or personal representative. The law also dictates who benefits from the deceased’s estate. You can see a visual representation of these rules in our blog post: What happens if you die without a Will? The duties are very similar to those of executors.

Key terms

• Beneficiary – a person who benefits from a gift in a Will or a trust.

• Capital Gains Tax – a tax paid when capital assets (e.g., shares, houses, land, unit trusts) are disposed of.  Capital Gains Tax may be payable on assets sold during the administration of a deceased’s estate.

• Deed of Variation - a legal instrument agreed by beneficiaries that changes the distribution of the estate.

• Downsizing addition - if you were to downsize to a less valuable property in later life, or your home is sold if you move into care, you might lose some or all of your entitlement to RNRB. The downsizing provisions provide a way for any RNRB that might otherwise have been lost due to the disposal or downsizing to be reinstated, as long as other assets are closely inherited. This amount is called the downsizing addition.

  These rules are complicated. We have a separate article about the RNRB and the downsizing addition.

• Estate – the money, land, investments, and personal belongings owned by a person when they die.

• Executor – a person named in a Will to carry out the instructions in the Will to distribute the estate.

• Grant of Probate – the document giving authority to a named executor to collect the estate and distribute it as set out in the Will.

• Inheritance Tax – The tax payable on a personal estate valued at more than £325,000. Inheritance tax forms must be completed for any estate with a gross value of more than £325,000.  The Inheritance tax rate is currently 40% (April 2022).

• Intestacy - dying without a Will.

• Residence nil rate band - The residence nil rate band (RNRB) is an extra nil rate band, available in addition to the general nil rate band if certain qualifying conditions are met. It is available on deaths on or after 6 April 2017. For married couples and civil partners, unused RNRB can be transferred if the surviving spouse or civil partner dies after 5 April 2017, irrespective of when the first of the couple died.

  The RNRB will be available if a person’s estate includes their home and it is left to their children or other direct descendants. The legislation refers to property being ‘closely inherited’. The amount of RNRB available is limited to the value of the home that is left to the direct descendants.

  There is no requirement for a claim to be made for RNRB. If the conditions for RNRB are met, then it is due automatically. Claims are required for an entitlement to the transferable RNRB or claiming a downsizing addition.

• Testator/Testatrix - a person making a Will.

• Trustee – a person named in a Will or other Trust document to hold money or assets for a specified period on behalf of beneficiaries. Executors may also be appointed as trustees in Wills, especially where money is held on behalf of children too young to inherit money directly or where a trust exists to protect a property or other assets.