11th September 2023

Thinking of your executors

Mary Elliott

Partner

I recently attended a funeral at which the priest spoke of administering the last rites to her dying parishioner. Musing further on this, I came upon the following passage from the Order for the Visitation of the Sick in the 1662 Book of Common Prayer:

"And if he have not before disposed of his goods, let him then be admonished to make his Will, and to declare his debts, what he oweth and what is owing unto him; for the better discharging of his conscience, and the quietness of his executors. But men should often be put in remembrance to take order for the settling of their temporal estates whilst they are in health."

This struck me as remarkably sound advice, no less apposite now than it was in the 17th century.

Don't put off making a Will until you are sick or near the end of life. Do it while you are well enough to have the energy and the emotional and mental resources to address what might be some difficult issues.

And do think of your executors (who will often be friends or family): do what you can, with appropriate professional advice as required, to ensure that they do not have to deal with unnecessary complications. Set your affairs in order, to use a slightly old-fashioned phrase (see my colleague Flora Nelmes’s excellent article on steps you can take to do this).

Equally important, talk to your chosen executors. If you appointed them in a Will made a long time ago, check that they are still happy to act: circumstances, and people, change. Generally, of course, if you made your Will a long time ago, consider whether it needs updating.

If you are appointing a friend as an executor who is also a professional person, make sure that you and that person have the same understanding as to whether they will charge for acting. It can be the case that the testator will expect the executor to act for free, in the capacity of a friend, but the executor will see things differently.

Make sure your executors understand the nature and expected time scale of their duties. If your Will creates trusts which are likely to be ongoing for some years, your executors should know if they will be expected to act as trustees on a long-term basis.

If your Will contains any discretionary powers, it is of key importance that you leave a letter of wishes explaining to your executors how you would expect them to exercise their discretion, and that this document is kept up to date. Whilst a letter of wishes will normally be non-binding, it is of great assistance to executors and trustees, whether acting in a professional or personal capacity, to have written guidance as to the testator’s thinking and objectives.

These conversations are not always easy, but in the longer term you will be helping your executors to achieve your objectives if you can ensure that they are as clear as possible as to the nature of their role and what you expect of them.