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What is my role as an executor in an estate dispute?

View profile for Jordan Davies
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Disputing a Will - practical considerations

A claim against an estate will always involve the executor of the estate. If the deceased left a Will, then the Will should state who has been appointed as the executor(s). If the deceased died without a Will, also known as dying intestate, then there will be no appointed executor. However, the person who applies for letters of administration on the deceased’s estate, often a family member or close friend, will become the personal representative of the estate and will hold the same role as an executor appointed under a Will.

The executor/personal representative owes a fiduciary duty to all beneficiaries to act in their best interest. It is their role to uphold the wishes of the deceased and aid estate administration.

A claim will usually be issued against the executors and the beneficiaries of the estate.

If the claim is issued against just the beneficiaries, then the executor/personal representative will still be involved in the claim as they are the person appointed to manage the estate. The beneficiaries will require the authorisation of the executor, when taking action such as issuing settlement offers to any potential claimants, as the executor/personal representative is the person managing the monies within the estate.

The executor/personal representative will be involved in defending an Inheritance Act claim however, their role requires them to take an impartial approach, and they must not favour either party. It is the duty of the executor/personal representative to cooperate with the court proceedings and provide assistance where necessary.

An example of where the executor/personal representative will be required to assist would include the provision of the estate accounts. This information is something that only the executor/personal representative will hold and is vital information when looking at a claim.

Sometimes, an executor will be a professional, such as a solicitor. It is common for people to appoint the directors/partners of a law firm to be their executors. This does not change their role, but it will incur costs for the estate as the fees incurred by the solicitor in acting as a professional executor will often be payable from the estate funds.

Can an executor/personal representative recover their costs in defending an Inheritance Act claim?

Although professional executors can sometimes recover their fees from the estate, it is not as simple for other executors. For someone acting in their personal capacity, as an executor appointed under the terms of a Will, they will inevitably incur costs in doing so. The ordinary expenses in administering an estate are recoverable however, when it comes to defending a claim being issued against the estate, things become more complex. If an executor incurs expense in defending a claim, it is not guaranteed that 100% of the costs incurred will be recovered from the estate. It is for this reason that it is important to discuss the matter with the beneficiaries and duly consider the cost risks in defending a claim. This being said, if an executor maintains an impartial stance, as they are required to do, they will be more likely to recover their costs in the matter.

If an executor were to take action that could be considered as defending a claim, and therein incurring further costs in the matter, they would be at risk of not being able to recover their outlay.

What if you are an executor/ personal representative and you wish to bring a claim against the estate?

There may be a rare occasion where an executor is the claimant in a claim. If this were to be the case, it would be necessary for the claimant to step down as executor and to renounce their appointment. Naturally, this would be essential as the individual would have placed themselves in a serious position of conflict.

In general, it is for the beneficiaries of the estate to defend a claim, not the executor, as the executor/personal representative must maintain an impartial stance and it is only the beneficiaries whose position is being challenged.

As such, if a claim is issued against an estate, it is vital for the executors/personal representatives to work together on addressing the issue.

What if a claim is brought against an estate to which you are a beneficiary or executor?

In the event of a claim being raised against an estate, it is important to seek legal advice at the earliest opportunity. There are strict time limitations in place in relation to Inheritance Act claims and so it is possible for claiming parties to act quickly to ensure that they do not miss their limitation to bring the claim.

Inheritance Act claims are complex matters and should be handled with due care and attention, please get in touch with our specialist team who will be happy to discuss your matter with you. Call us on 0161 696 6178.

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