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Can A Co-Executor Act Alone In The UK?

It’s good practice for a will to name more than one executor. Unfortunately, this theoretically creates the possibility for disagreement between them. So, can a co-executor act alone in the UK?

This rather depends on how the will is set up. Let’s take a look at the details:

Who are usually executors of a will?

There are usually two broad categories of people chosen as the executors of a will:

Close friends or family members – trusted by the deceased to handle the many responsibilities of being an executor.
A professional or business – providing executor services.

Both have their advantages and disadvantages. For example, a professional is likely to deliver a much better service and protects the deceased’s family from stress and disagreement. However, they will want to be paid for their time.

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An executor’s responsibilities are many and varied, encompassing a wide range of paperwork, financial calculations, and legal obligations. They include but are not limited to:

Registering the death (though this is sometimes handled by family members)
Valuing the estate (sometimes requiring the hiring of surveyors or valuers)
Calculating and paying Inheritance Tax
Applying for probate (the legal permission to deal with the deceased’s estate)
Notifying potential creditors of the death, paying debts, generally administering the estate and concluding the deceased’s affairs

Can a co-executor act alone?

It is common for multiple executors to be named in a will. This is to ensure that the wishes in the will can still be carried out even if something were to happen to one of the executors.

However, this does raise the possibility of a co-executor acting alone. Whether this can happen largely depends on how the will states certain decisions will be made. This can be:

Jointly – decisions made jointly require the agreement of all executors.
Jointly and severally – executors must act together (jointly) for some decisions but can act on their own (severally) for others.

It is important to note that if a type of decision or task is stated in the will to be a matter the executors should handle jointly, no one executor can make the decision on their own.

If the decision can be made severally though, any executor can make it. It also then counts as being the act of all the executors. The law does not distinguish. The only exception is if the matter concerns land.

Why might executors disagree?

Each executor should make sure that communication remains open and honest between themselves to make sure there are no disagreements. However, it’s not unheard of for executors to disagree because of:

Historical personal disagreements
Different methods or habits of individual executors
Too much discretion or a lack of clarity in the executor’s role

Of course, it’s also possible that another executor may be discharging their duties poorly, unwilling to discharge them, or find their own interests in conflict with the will (perhaps because they live in a property that the will requires them to sell, for example).

What are the consequences of a co-executor acting alone?

There are several consequences of a co-executor acting alone. Usually, their co-executors respond by:

Asking to negotiate – most disputes between executors can be solved with negotiation. This can happen simply between the parties, though independent third-party mediators can also be brought in.
Requesting legal advice – a slight escalation involves seeking legal advice from an expert regarding the limits of an executor’s role.
One executor stands aside – any executor can renounce their role at any time if they wish to (though it is smart to take legal advice before you do). You can also get a Notice of Power Reserved, meaning you are stepping out for now but reserve the right to come back later.
Applying to the High Court for guidance – after expert legal advice, the next escalation is asking the High Court to step in. The court will not always do this, but can if the decision in question is deemed important enough.
Removing one of the executors – this final rather extreme step is a possible consequence of an executor acting alone. This is only possible if gross incompetence or deliberate misconduct can be demonstrated rather than the situation being a clash of personalities.

The acrimony and general escalation of disagreements between the executors of a will can become hugely problematic and unpleasant if it proceeds beyond the amicable negotiation stage.

It is possible for a co-executor to act alone if the will states the decision can be made “severally”. But all of the above means it is best practice for multiple executors to actively communicate with one another to make sure disagreements don’t happen and no one acts alone.

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Does The Executor Of A Will Get Paid In The UK?

The executor of a will is one of the most important roles in it. It comes with a large degree of responsibility and can involve a lot of work and many challenges. But does the executor of a will get paid in the UK?

Sadly, the answer is usually no. Certainly, an executor will not get paid by default.

However, that’s not the complete picture. Here is everything you know about how you might or might not get paid for fulfilling your duties as the executor of a will:

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Does An Executor Of A Will Get Paid?

Despite the amount of work that can be involved, an executor is not automatically entitled to be paid for their work. However, it is possible for:

1) A Will To Make Provisions For Paying An Executor

Some wills recognise that the job of an executor deserves some sort of recompense and earmark a portion of the estate or a lump sum to the executors in thanks for the work they are going to do.

You can’t simply bill an estate for your time as an executor though. There has to be a specific provision in the will.

2) An Executor To Claim Expenses

However, it is recognised in law that some tasks an executor might have to complete do cost money. You will need to pay probate fees, for example. The estate will cover those expenses so you are not left out of pocket by your work.

This means it’s good practice to collect all receipts and invoices as you administer the estate. This will ensure there are no difficulties when it comes to claiming those expenses back.
This is important. Because the beneficiaries can protest against any expenses that seem too high.

3) Professional Executors To Charge Fees

Being an executor can be hard work. For this reason, many people decide to use a professional such as a solicitor to do the job for them rather than put a potentially onerous duty on the shoulders of a close friend or family member.

The way this works is much the same as when a will makes provision for an individual executor to be paid. The only difference is that a professional executor or trustee will insist on there being a specific clause (known as a “charging clause”) in the will that allows them to charge for their services.

Again, it is possible for beneficiaries of the will to object if the fees the professional attempts to charge are perceived as too high. However, even if a replacement executor is named, they cannot be paid using the existing charging clause unless they are also a professional.

A “professional” is here taken to mean they are acting as part of their profession or as a business that delivers services connected to being an executor or trustee.

A recent court case clarified that executors can only be paid if their business delivers these specific kinds of highly relevant services. Even if an executor were to try to claim for other work done administering the estate, the will must use language that specifies they can for the claim to be successful.

Who Are Most Likely To Be Paid Executors Under A Will?

Because of the fact that professionals delivering services will have a specific type of “charging clause” inserted, they are the most likely to be paid executors under a will. Solicitors are the type of professional most commonly trusted to perform this duty.

This is particularly valuable if the estate is a complex one as a specialist solicitor will have legal knowledge and experience that will smooth the way.

As mentioned above, it’s also not impossible for friends or family members of the deceased chosen as executors to be paid for their work. However, the default and most common position is a “silent will” – that is to say, a will that makes no provision for an executor to be paid for their time.

Are Expenses Paid In Addition To Any Fees?

Yes. Executor expenses are usually paid in addition to any fees that they may be paid for their services.

However, the charging clause included in a will on behalf of a professional or an individual can stipulate different outcomes. Unless you are an expert yourself, it’s always worth checking with a specialist as to what the legal language of a charging clause actually means.

What Are Usual Executor Expenses?

Standard executor expenses are not strictly defined. As long as the executor can show how that the expense was made because it was required or benefited the estate, they are normally accepted.

That said, beneficiaries are allowed to request the estate’s accounts and have the right to challenge any expenses that seem illegitimate.

The usual sorts of things that you might expect to count as executor expenses include:

Funeral expenses and probate fees
Any necessary property maintenance, cleaning, or ongoing utility bills
The fees of surveyors or valuers of property as well as estate agent and conveyancing solicitor fees when selling property
Travel or postage costs (though this is worth defining with the beneficiaries)
Property insurance for unoccupied buildings

If you are in any doubt, it’s worth discussing with the other executors and beneficiaries of the estate what they understand you can claim for. It’s also often worth consulting a legal expert.
This is because, as an executor, you are personally liable for any losses to an estate caused by errors – even honest ones. This means that not only may an executor of a will in the UK not get paid, but they open themselves up to unexpected costs too.

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Deed of Variation

Expert Deed Of Variation Solicitors

If it is necessary to alter a Will or a lease, it may be possible to do this by executing a deed of variation. We take a look at when a deed of variation can be used and why.

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We select our solicitors for their legal excellence as well as for the high level of service they provide. If you need a deed of variation prepared or advice on whether this is the right option for your circumstances, we can find you a solicitor to give you the guidance you need.

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What Is A Deed Of Variation?

A deed of variation is a legal document that can formally change the terms of either:

A Will; or
A lease

When Do You Use A Deed Of Variation?

Deed Of Variation Of A Will

A deed of variation of a Will is used by beneficiaries who want to change the terms of a Will. A beneficiary can only make a deed of variation to change a Will in certain circumstances and the change can only relate to the portion of the estate that they are entitled to receive and not to anyone else’s share.

The deed of variation will set out what the beneficiary wants to happen to their inheritance instead.

Why Vary A Will?

There are many reasons why you may want to change the terms of a Will to allow someone else to benefit from your inheritance, including:

To avoid paying Inheritance Tax on the same money twice, firstly when money is passed to you and then in time when it is passed on to your choice of beneficiary. If the money goes straight to the final beneficiary, it will not form part of your estate, so no Inheritance Tax would be payable on it
To reduce a Capital Gains Tax liability
You would like someone else to benefit from the money now and you do not need it yourself
You feel that the money should have been shared differently and you want to put that into effect, for example, someone may have been excluded from the Will or a child has been born since the Will was written
You would like to make a donation to charity and by changing the Will, Inheritance Tax will not have to be paid on the money going to charity

Legal Advice On Varying A Will

It is important to take legal advice before agreeing to a deed of variation. There could be implications for others as well as yourself, for example, the estate could become liable for more Inheritance Tax if the deceased was your spouse and you leave your inheritance to someone else. This is because, as a spouse, you would not pay Inheritance Tax on money from your spouse’s estate.

Tax issues surrounding inheritance are notoriously complex and you are strongly advised to speak to an expert Wills and probate solicitor who will be able to ensure that any changes you make are beneficial and that you fully understand the implications of making them.

Who Can Vary A Will?

To vary a Will, you and all of the beneficiaries named in the Will need to be aged 18 or more.

All of the beneficiaries must agree to the proposed changes. You cannot be compensated in return for agreeing to adjust your share, either by another beneficiary or by anyone else.

In some circumstances, the court may need to give its approval to a deed of variation, including where children or unborn children could be affected by the change.

Deed Of Variation Of A Lease

A deed of variation of a lease can be used to change certain terms contained in a lease. This is the document made between the freeholder of a property and someone who has a leasehold interest. A common example is a flat owner, where the freeholder owns the land and buildings and the flat owner has a lease of their individual flat.

Leases are lengthy documents containing many terms and conditions, including the length of the lease, the rent payable, requirements to give notice in respect of certain issues such as alterations and restrictive covenants preventing the leaseholder from carrying out certain actions, such as keeping pets at the property.

Why Vary A Lease?

You may want to vary your lease for a variety of reasons, including to:

Extend the term of the lease informally by agreement with your landlord
Address a legal issue so that you can sell the property
Amend or remove a restrictive covenant, for example, to allow someone to carry out business at the property or to sublet the flat
Change provisions surrounding ground rent
There is an error in the original lease

Legal Advice On Varying A Lease

If you have been offered a deed of variation to change your lease, you should speak to an expert property solicitor before agreeing to the alterations. Similarly, if you wish to make changes yourself, you are advised to ask a solicitor to draft and register the deed of variation to ensure that it is legally effective and that it has been correctly worded.

A property solicitor will also be able to advise you of the implications of agreeing to a deed of variation and check that the alterations are in your best interests.

If the property is subject to a mortgage, the lender will also need to approve the variation and give their consent. This will need to be dealt with by your solicitor.

The other party will also need to approve the deed and execute it. If you are the leaseholder, the other party is the freeholder. They are likely to refer the matter to their solicitor for advice before signing.

How Much Does A Deed Of Variation Cost?

The cost of a deed of variation will depend on how complex the situation is and how much work is required by your solicitor.

We can match you with a solicitor with the right level of experience so that you will not pay for more expertise than you need. They will be able to provide you with an estimate of the costs at the outset so that you know from the start how much the work is likely to cost.

They will also be able to advise you of any other potential costs such as valuation fees, Land Registry fees and whether you will be required to pay the landlord’s legal costs.

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Tenants In Common And Care Home Fees – Everything You Need To Know

Care home fees can be much higher than many people expect. Understandably, this means there is often a desire to minimise those costs. The way owning property as tenants in common and care home fees works can be a very beneficial interaction to understand.

Because if you own property as joint tenants, it can create problems when your local authority calculates your care home fees. The most prominent of these is that you may essentially be required to sell your home to cover the fees.

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This makes it important to explore the best way to own property if you want to ensure the care home fees you have to pay are fair and affordable. Let’s walk through how this could work:

The Two Ways To Own Property – Jointly Or Tenants In Common

There are two ways to own property in the UK – as joint tenants or as tenants in common.

Joint tenants own a property equally. They have a 50% share each and, among other features of this arrangement, have no say in what happens to that share. They cannot leave it to someone else in their will, for example. The surviving tenant will always inherit full ownership.

Tenants in common, by contrast, own specific shares of a property. These can be unequal and they can be changed during the course of ownership. They can also be left to beneficiaries other than the surviving partner in a will.

These and other differences between being tenants in common and joint tenants have a large impact when it comes to how your capital is assessed for care home fees.

What Happens With Jointly Owned Property And Care Home Fees?

Your local authority will carry out means testing (an assessment of your finances, including your assets such as property, savings, and income) to determine how much of your care home costs they will cover. You may receive:

Full funding – if your total capital is valued below £14 250 in England (£18 000 in Scotland and £50 000 in Wales) your care home costs will be fully covered.
No funding – if your total capital is valued above £23 250 in England (£28 750 in Scotland and £50 000 in Wales) you will be required to self-fund your care home costs.
Partial funding – if your total capital is valued between those figures in England and Scotland, you will qualify for partial funding.

Jointly owned property may or may not be assessed as part of your means testing for care home fees depending on the specifics of your living situation.

Means Testing For Care Home Fees – Is Jointly Owned Property Always Included?

Jointly owned property is not always included in a means test for care home fees. The common examples are:

Property still occupied by your partner – if the other joint tenant of the property still lives in your home, it will not be included in the means test.
Property still occupied by separated or divorced partner – the property will be included in the means test. The only exception is if they are caring for your child under 18 or a disabled relative or one over 60 years of age also living in the property.
Partner separated and no longer living in property – the property will be included in the means test. If you’ve paid off your mortgage, your local authority will assess based on half of the property’s value.
It’s a temporary situation or you need home care – if you are entering a care home for a short period or need home care, your property will not be included in the means test. This is covered by something called the “disregard period” that lasts for 12 weeks after you enter a care home.

Can I Gift My Home To My Children To Avoid Care Home Fees?

Many people imagine that gifting their property to their children may be a way to avoid inheritance tax or it being assessed as part of the means testing for care home fees.

Unfortunately, this approach often falls afoul of what is known as “deliberate deprivation of assets”. This is essentially when your local authority recognises you have deliberately tried to reduce your assets to pay lower fees and does something in order to balance it.

Should I Change From Jointly Owned To Tenants In Common To Protect My Share From Care Home Fees?

Owning property as joint tenants is popular with couples as it feels like a natural way to proceed at the start of what will hopefully be a happy life together.

As touched on above though, being joint tenants means the surviving tenant will automatically inherit full ownership of the property if one tenant passes away. If the survivor then needs to go into care, the full value of the property will be assessed as part of the means test.

A better solution can be to change from jointly owned to tenants in common. This allows each tenant to leave their share to someone else (and, often better, to a trust) in their will. This can enable the surviving tenant to continue living in the property for life and only be assessed for half the value if they need to go into care later.

Of course, major decisions like this should never be made without specialist legal advice. Tenants in common can be a smart way to make care home fees much fairer, but it’s always a good idea to talk to an expert first.

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What Does Tenants In Common Mean In A Will?

There are two ways you can jointly own property in the UK. As joint tenants and as tenants in common. But what does tenants in common mean in a will?

Are there disadvantages or advantages of being tenants in common as opposed to joint tenants? What are the problems for the person inheriting the other person’s share of the will if they want to sell?

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Let’s take a look:

What Are The Differences Netween Joint Tenants And Tenants In Common?

Joint tenants and tenants in common sound very similar, but they mean very different things for how property is jointly owned and what it means in a will.

The key differences between joint tenants and tenants in common are:

Joint Tenants

Joint tenants own the whole property together equally. It can be thought of as a 50-50 split.

This has some advantages. For one, it’s simple. There’s no need to decide who owns how much of what, as there can be when owning property as tenants in common.

For these reasons, choosing to own property as joint tenants is something that’s often done by couples just starting out on their life together. The thought that something might go wrong in the future seems very far away.

When a joint tenant dies, the situation is simpler too. However, it’s also more limited in terms of choice. The surviving tenant will automatically inherit the entire property that they once shared ownership of.

What’s known as the “Right of Survivorship” means that usually not even a joint tenant’s wishes expressed in their will can overwrite the automatic inheriting of full ownership by the surviving joint tenant.

Tenants In Common

Tenants in common can specify how much of a property they each own. They own only those specific shares. This might also be a 50-50 split. Or it can be different so that it reflects divergent levels of income or deposit contributed by the individual tenants.

There are many advantages to this. Flexibility and the sense of fairness that it can create between tenants are high among them.

That said, it’s also a more complex arrangement to set up than joint tenants. Of course, any property ownership agreement should be drawn up with expert legal advice on hand. Yet becoming tenants in common will require this expertise even more than other arrangements because of the potential complexity.

The other difference between being tenants in common and being joint tenants is what it means in a will. Because the shares of a property owned by a tenant in common can be distributed as part of their will.

In a way, this can be seen as more beneficial flexibility. Yet it also has the potential to create disputes.

The Potential For Will Disputes Created By Tenants In Common

Being tenants in common can cause problems for the person inheriting the other person’s share of the will. Especially when they want to sell.

For example, you can easily picture a scenario where a married couple buy a property as tenants in common. When one sadly passes away, their will stipulates that a child from a previous marriage should inherit their share.

This child has inherited a share of a property, which can be good for them. Yet they are unlikely to want to live in the property with their parent’s former partner. When this happens, there are usually three options. These are:

They buy you out
You buy them out
You both agree to sell the property

These sound like they should be clear and obvious solutions. Yet there is a large potential for disagreement as to the favoured course of action.

You might want to sell the property. They might want to keep it, but not be able to afford to buy you out. In these circumstances, it’s wise to seek professional legal advice from a solicitor as to how to proceed.

What Does Tenants In Common Mean In A Will?

For a will, tenants in common means that the owners of the property in question can choose what happens to their share after they die.

If they choose the other tenant as their beneficiary, there isn’t a problem. However, if someone little known or of differing mind on the favoured solution as to what to do with the property inherits their share, there is potential for disagreement.

This makes it important to be open and honest about the arrangements made in the wills of any tenants in common if at all possible. Because what it means for the surviving tenant and the beneficiaries can be the difference between a happy and an argumentative future.

Need Specialist Advice On What Tenants In Common Means In A Will?

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