Island Life Magazine Ltd August/September 2012 | Page 168

Legal issues with Terence Willey & Company

Appointment of
executors under a will
For a Will to be valid it must appoint
Executors who have certain personal
duties and obligations following death.
All too often individuals are appointed
without sufficient consideration and
in some cases not even advised of their
appointment leaving it somewhat of
a surprise when an individual dies.
Executors have, what is known as
a fiduciary duty to ensure that the
assets of the Estate of the deceased
are protected and where necessary to
prove the Will by way of seeking a
Grant of Probate from the Court, and
then administer the Estate expressly
pursuant to the wishes of the deceased.
It also involves a responsibility for
dealing with all the necessary funeral
arrangements and liaising with
Funeral Directors and arranging
a post funeral wake if considered
appropriate. They are also responsible
for discharging the funeral account
and other testamentary expenses and
disbursements. It is therefore essential
that an Executor first seeks advice
if in doubt as to his or her role and
responsibilities and personal duties
and liabilities following death.
As far as the Administration is
concerned the Executors are fully
accountable to the Beneficiaries in
the Estate of the deceased and can
be requested by them to consider
many issues such as dealing with
variations to a Will, distributing
assets by consent and the disposal
of personal effects and accounting
to various Authorities including
H.M. Inland Revenue. Whilst these
duties can be undertaken personally,
without the necessity for professional
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advice, careful consideration must
be given at the outset to embarking
upon this procedure alone without
such professional representation,
particularly when it involves
discharging clearance of tax liabilities.
It is very common for clients to
presume that Executors cannot
benefit under a Will, but this is not

the case rather a Beneficiary in a Will
must not witness a Will. Often it is
considered appropriate for a lawyer
to be appointed with a member of
the family to assist and advise in the
Administration or if not directly
appointed leave directions within
the Will for a law firm to assist
and advise in the Administration.
Trustee Departments of Banks also
carry out this duty and in the event
of any professional appointment it
is wise when completing your Will
to discuss with your lawyer, Bank or

any other professional individual to
be so appointed, to have some idea
of the extent of Administration costs
and where possible specifically agree
these at the time of completing your
Will. Additional Executors may be
appointed in the Administration up
to a maximum of four including those
already appointed in the Will if it is
considered necessary for management
of Trusts created by the Will. Their
fiduciary duty often extends beyond
completion of the Administration and
the ongoing management of Trusts
as they must always ensure the assets
of the Esta FR&R&