Choosing the executor

Thursday, 01 April 2010
Amanda Edwards explores the topic of choosing the executor, including how many executors are needed and what happens where there is not an executor.

One of the best known principles of trust law is that two trustees are needed to give valid receipt on a transfer of land (s27(1) Law of Property Act 1925 (LPA 1925)). Less widely appreciated is the fact that a sole executor (if he is the only proving executor) can give valid receipt.

The relevant provision is s27(2) LPA 1925, which provides first that proceeds of sale or capital money shall not be paid to, or applied by, the direction of fewer than two persons as trustees (except where the trustee is trust corporation). However, there is then a proviso that states that:

‘this sub-section does not affect the right of a sole personal representative as such to give valid receipts for, or direct the application of, proceeds of sale or other capital money…’

Where, however, there is more than one executor who has proven the will, all proving executors must join in any conveyance.

On the number of executors generally, an individual may appoint in his will any number of executors, but only a maximum of four at any time may take out the grant of probate and act in relation to any one part of the estate (s114(1) Supreme Court Act 1981 (SCA 1981)). It is possible to have different executors to act in relation to different parts of an estate, in which case a grant will be issued in relation to each part. This can be useful where the deceased has, for example, a literary estate or complex business interests.

Otherwise, there is little point in naming more than four executors. Two executors will suffice for most estates. Sometimes, however, clients want to appoint more than two if, for example, they have three or four adult children and want them all to have the opportunity to act, even if one or two of them decide initially not to take out the grant and to have power reserved for them to do so at a later stage (should they change their minds and choose to be involved in the administration).

Whether it is advisable to have only one executor appointed under a will is a different matter and will depend on the circumstances. Where a minority or ongoing trusts arise under the will, it will be preferable to appoint two executors (who will then also act in the trusts, unless provision in the will is made for different individuals to act as trustees). Although a sole executor has full authority to act, even where a minority or life interest arises, the court may appoint one or more additional personal representatives to act while the minority or life interest subsists (s114(4) SCA 1981).

A sole executor... can give valid receipt [on a transfer of land]

By contrast, where there is no executor either because there was no will, or all the named executors have died before the testator or are unable to act, one or more administrators will be appointed. It is generally not possible for a sole administrator to act in such circumstances, as two administrators will always be required where a minority or life interest arises, unless the court considers it expedient to have a sole administrator (s114(2)SCA 1981). On the other hand, where there is no such life interest or minority, a sole administrator will be able to give valid receipt on the transfer of land, as s27(2) refers to ‘a sole personal representative’ having such a right.

Only in limited circumstances will it be sensible to appoint only one executor, for example where a surviving spouse/civil partner takes all the residuary estate outright and there are no trusts in the will. Even then, it will be advisable to make provision for a substitution in case the spouse/civil partner dies before the testator or becomes incapable, otherwise the court will have to issue the grant to an administrator with the will annexed, and the individual appointed may not be the person the testator would have wished to administer his or her estate.

In the event of divorce or dissolution of a civil partnership the spouse/civil partner is deemed to have died at the date of the divorce/dissolution and any appointment of that spouse/civil partner as executor will not take effect (s18A, Wills Act 1837). It would also be inadvisable for a spouse/civil partner to be a sole executor and trustee where a will contains a nil-rate band trust under which he or she is one of the beneficiaries, even if it is not envisaged that the trusts will hold land.

Author block
Amanda Edwards

Amanda Edwards TEP is a Solicitor with Boodle Hatfield.

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