Misunderstandings are a feature of UK probate when next of kin and executors don’t understand how the legalities work. The former may rightly believe they own the deceased’s entire estate. However, the executor must first obtain the necessary clearances to hand it over.
The Sources of Conflict between Next of Kin and Executors
Everything is frozen initially after a person dies, whether or not they left a legal, written last will and testament. Moreover all remaining debt must be settled first before rightful heirs are entitled to anything at all.
We wrote this post to explain the background events that may lead to next of kin and executors disagreeing on progress. We hope this will encourage them to work together and finalize the estate as soon as practically possible.
The Main Tasks of an Executor in England and Wales
The rules controlling executors are slightly different in Scotland and Northern Ireland, although the broad principles are similar. Their primary responsibilities are to the next of kin. However these may extend to third party beneficiaries, as outlined in the will if there is one.
The beneficiaries may not understand that the executor must also fulfill the legal requirements of probate. Some of these may seem strange as they are quite ancient. Never the less they are the law and must take priority. An executor may become financially responsible for any losses if they don’t accept this.
# The Fiduciary Duties of the Executor
The executor operates in a position of trust towards the beneficiaries, since the assets are after all their future property. They must therefore manage the deceased’s estate in a way that optimizes the value the inheritor(s) receive in due course.
Next of kin and executors should therefore agree about decisions taken. An executor may not attempt to enrich themselves at the expense of the estate. Constant communication is thus essential regarding significant developments.
# The Probate Must Complete First
A deceased person’s estate must pass through the probate process before the executor may distribute the proceeds:
X The executor gathers together all the assets of the estate
X The executor tracks down all the debts of the deceased
X The executor first settles the debts before distributing the balance
Tracing the creditors is a time-consuming process because it involves advertising for interested parties. Creditors take priority. If there are insufficient funds to pay them off then unfortunately the next of kin inherit nothing.
A Deceased Estate May Thus Be a Recipe for Conflict
The executor – quite often a lawyer – may only receive a stipend for their trouble. They may, of course also be a major or sole inheritor. We believe there should always be a co-executor in the form of a solicitor.
A caring family member and an astute legal mind quite often make the best team. In fact, this can be the most effective way to avoid conflict between next of kin and executors.