Appointment of Executors and Trustees
| Author | Lesley King/Peter Gausden |
| Pages | 115-126 |
11.1 Why appoint executors?
The ability to appoint one or more executors to obtain a grant of probate to deal with the administration of the estate and then carry out the terms of a will is one reason why it is better to die testate rather than intestate.
If the testator fails to make an effective appointment of an executor, then the administration and implementation of the will must be carried out by one or more administrators appointed by the court. The person(s) able to make application for a grant of administration are determined by rule 20 of the NCPR 1987 with the most likely applicants being amongst those entitled to residue. While such person(s) will have a beneficial interest in the estate and the motivation to see it is administered without delay, it could be such person(s) were not uppermost in the testator’s mind as being the right or best people to deal with the estate.
Even if the application of rule 20 is consistent with the testator’s choice of person(s) to deal with the estate, there are differences between the offices of executor and administrator (see para 11.2).
11.2 Executors distinguished from administrators
It is important to distinguish between the offices of executor and administrator; in particular, it is only an executor who has authority before the grant is issued.
The authority of an executor derives from being appointed by the deceased in the will and it starts at the date of death. The executor will obtain a grant of probate to confirm both the will and the executor’s appointment within it are valid. Consequently, the grant acts as the court’s confirmation to third parties that the executor’s authority exists.
116 Wills: A Practical Guide
In theory, an executor can exercise all the powers required to deal with the deceased’s property without obtaining a grant. The executor can sue or be sued, though if he is bringing an action which depends upon title to act as executor, a grant is necessary before judgment as proof of that title.
In practice, however, the executor will almost always need to obtain a grant as proof of title to collect in the deceased’s assets. In addition, no purchasers of estate property are likely to part with their money without proof of the executor’s title as seller, whilst any beneficiary in whose favour a transfer or assent of land is made will want sight of the grant to be satisfied as to the executor’s authority.
As regards administrators, whether or not there is a will, their title derives from the grant itself. Unlike an executor, they are appointed by the court and not by the deceased. Pending the grant, legal title to the deceased’s assets vests in the Public Trustee (section 9 of the Administration of Estates Act 1925 (AEA 1925) (as amended by the Law of Property (Miscellaneous Provisions) Act 1994)). Whilst the estate of an intestate person vests in the Public Trustee until the issue of the grant, if the deceased leaves a will and:
(a) at the time of death there is no executor with power to obtain a grant; or
(b) at any time before probate is granted, there ceases to be an executor with power to obtain a grant;
the estate disposed of by the will vests in the Public Trustee.
The person with the best right to take the grant of administration has no right to deal with the estate in the interim period; see, for example, the Court of Appeal decision in Millburn-Snell and others v Evans [2011] EWCA Civ 577, upholding the rule that a claim form issued on behalf of an estate before the grant is obtained is a nullity. Further, the grant when made does not relate back to the date of death except for the purpose of allowing the administrator to sue for wrongs done in the period between the death and the grant.
11.3 Drafting the executor’s appointment
A grant of probate can issue only to an executor who is appointed by the will or a codicil. The most certain way of doing this is by an express appointment clearly:
(a) identifying by name the person(s) who are the subject of the appointment; and
(b) stating that they are to be appointed ‘executor’.
A suitable form of wording is:
I appoint [A] of …… and [B] of …… to be my executors.
Sometimes, an appointment might be made by description rather than by name, for example.
I give my whole estate to my husband and appoint him my sole executor.
Such an appointment of a spouse (or civil partner) is unlikely to give rise to a problem other than the ‘husband’ in the example needing to identify himself when submitting his application for the grant. However, appointments along similar lines of ‘my son, ‘my sister’, ‘my nephew’, etc are not recommended because, although the appointment may be valid, there could be difficulties if there is more than one person satisfying the description. If the matter cannot be satisfactorily resolved, the appointment could fail for uncertainty.
It is also possible to appoint an executor who is the holder of an office. If the appointment simply refers to the office without naming anyone, this is treated as an appointment of the person holding that office at the date of death (see In the Estate of Jones (1927) 43 TLR 324). However, more common is an appointment of the members of a firm (e.g. solicitors) which in the absence of any contrary provision in the will is prima facie treated as an appointment of the members of the firm at the date the will is made (or the date of any codicil republishing the will containing the appointment) who are entitled to act (see Re Horgan (Deceased) [1969] 3 All ER 1570). As to codicils and republication of a will, see para 6.3.
An appointment can still take effect even if the word ‘executor’ is not used if the appointment is ‘according to the tenor of the will’. This means the appointment is implied if the will shows an intention a particular person should perform the functions of an executor, though not expressly so described. A direction to ‘pay the testator’s debts’ has been held sufficient, as has the appointment of a trustee ‘to get in all my property’.
However, a simple unqualified appointment of someone as a ‘trustee’ of property is not enough for that person to be...
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