Executors and Guardians

An Executor is someone named in a will as taking legal responsibility for carrying out the instructions left by the deceased regarding their estate. If there's no will, or those named are unwilling or unable to fulfil the executor role, a court may appoint an administrator in their place. Frequently, Executors instruct solicitors and other professional advisers to help them.

Executors (who must be over 18 and mentally capable) should be people on whom you can rely completely. There can be between one and four Executors, although most people tend to have two (in case one of them dies or so they can share the responsibility). You can choose relatives, friends or professional advisers; thus, for instance, you might choose your spouse and your family solicitor. An Executor can be a beneficiary in your will; they can also claim from the estate for any expenses incurred in carrying out their duties as your Executor.

You may also nominate a bank to act as your Executor but they will charge for this service. If you do appoint a professional Executor, you may need to make clear in your will that fees for carrying out their work should be paid from the estate.

Professionals will always charge for their services as Executors; charging is not restricted to banks but to any Executor acting in a professional capacity.

You may appoint Guardians in your will to take responsibility for any of your children who are under the age of majority (18) at the time of the death of yourself or your spouse. They may be the same people as your Executors, although this is often not the case. You should, of course, ensure that your Executors and Guardians are willing to take on their responsibilities if and when required.

Executors and Guardians may be beneficiaries in your will; people who witness your will (and their husbands, wives or civil partners) cannot. You should ensure, therefore, that you do not ask family and friends remembered in your will to be witnesses.

Your signature to the will must be witnessed by two people (aged 18 and over) who must be present at the time you sign it. They must sign the will in your presence and there should be an 'attestation clause' where the witnesses confirm that you signed the will in their presence.

The law does allow someone to sign your will on your behalf as long as you are in the room and it is signed at your direction. This usually occurs if a person is blind, illiterate or too unwell to sign the will. If you are suffering from a serious illness or dementia, it is advisable to obtain a Medical Practitioner's statement, certifying that you understood the nature of the document that you signed.

Although a will is legally valid even if it has not been dated, it is advisable to ensure that your will includes the date on which it was signed to protect against future disputes about when your will may have been drawn-up and whether it reflects your latest wishes.

If you do not appoint an Executor, the courts can appoint other people to be responsible for this job in the event of your death. A 'Public Trustee' is often appointed as an Executor if there is no-one else willing or able to take on the role (perhaps if your beneficiary is an incapacitated adult or dependent child likely to outlive both parents and other close relatives).

Considerations you should take into account when choosing an executor

• Location - will they be able to deal with the logistics of selling and/or clearing the house, for example?
• Moral Issues - Do the executors have the same viewpoint on life as you? Will they ensure that your money is spent on your children in a manner similar to your own?
• Age - will they be able to cope with the work involved in realising your estate? Are they likely to survive to the end of the Trust? Once the appointment takes effect, the Trustees will be able to appoint new Trustees to take over from them.
• Finances - do they have the skills to look after and invest a potentially large sum of money? They will be able to take specialist guidance but will still need to make decisions based on that advice.