What is an Executor?
An Executor of a Will is the person (or persons) appointed by the deceased to deal with the administration of their estate. Executors have numerous duties, including a duty under Section 25 of the Administration of Estates Act 1925 to collect in the estate and administer it in accordance with the provisions of the Will.
Other aspects of an Executor’s role can include making funeral arrangements, paying the debts of the estate, obtaining a grant of probate, preparing estate accounts and making distributions to Beneficiaries.
Where a person dies without making a Will, the person dealing with their estate is called an Administrator, but they essentially have the same duties as Executors, albeit as there is no Will, the rules of intestacy must be followed.
The role of an Executor is an important one and can often be fairly complex, particularly if the deceased had substantial assets or the provisions of the will are not straightforward.
Can the actions of a Trustee be challenged?
If it can be shown that a trustee has breached their duty (either their legal duty or a duty pursuant to the terms of the trust) then the actions of a trustee may be subject to legal challenge. In some circumstances trustees may be removed from office by an order of the court.
Do all Trust disputes result in court proceedings?
No. Wherever possible we will seek to resolve the dispute informally by negotiation and alternative dispute resolution. The majority of trust disputes reach settlement without the need for court proceedings to be commenced. Should this approach not prove successful however, we have experience and expertise in trust litigation and court proceedings can be commenced.
How much does a trust dispute cost?
It is difficult to accurately predict the total cost of any dispute as no two disputes are the same and the costs are largely dictated by the amount of work required to bring the dispute to a final resolution. We appreciate that clients do not like uncertainty in relation to legal costs and depending on the circumstances of the case, we are able to offer a number of funding options to clients in order to suit their needs.
Is it possible to challenge a will?
Yes. There are a number of circumstances in which it is possible to challenge the validity of a Will. These include a lack of capacity or knowledge or approval of the testator, undue influence or fraud. Should you have any concerns regarding the validity of a Will, you should obtain legal advice as a matter of urgency.
What are duties and powers of a Trustee?
A trustee has the legal responsibility for assets held in a trust and is required to manage the trust in accordance with the specified terms and the settlor’s wishes. Trustees are subject to various duties and as part of their function, including a requirement to: -
- Act with responsibility and care;
- Administer/manage the trust in accordance with the trust deed;
- Act fairly and impartially to all beneficiaries;
- Keep detailed records to demonstrate the trust has been managed properly;
- Not to personally benefit from the trust.
What if I have been left out of a Will or am unhappy with the amount that has been left to me?
Under the Inheritance (Provision for Family & Dependants) Act 1975, it is possible for certain individuals to pursue a claim if they can demonstrated that the financial provision made for them is inadequate.
What is a Caveat and how does it work?
A caveat is a legal document issued by the Probate Registry that prevents a grant of probate being issued. The caveat will remain in place for a period of 6 months (unless voluntarily removed by the person entering it or by an order of the Court. A caveat can be renewed after 6 months. Caveats should not be obtained lightly or without justifiable reason as the Court can impose financial sanctions where it considers that a caveat has been improperly obtained. It is therefore advisable to obtain specialist legal advice before seeking to lodge a caveat.
What options are available where an Executor/Administrator is not carrying out their role properly?
There are a number of possible outcomes such as the Executor/Administrator agreeing to stand down or be replaced, the Executor/Administrator undertaking to carry out their function going forward and even the removal or replacement of the Executor/Administrator. No two situations are the same and therefore consideration must always be given to the most favorable outcome given the specific facts of the matter.
Would I have to attend a court hearing if I pursue a claim?
Not necessarily. Our objective in any dispute is to seek to a successful resolution as quickly and cost-effectively as possible. This can include seeking to negotiate informally, attending a mediation and other methods of alternative dispute resolution. The vast majority of disputes do not reach a final court hearing.