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Executor's responsibility

including wills and probate
granretire
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Executor's responsibility

#324598

Postby granretire » July 8th, 2020, 3:10 pm

A friend was executor of a couple of wills - the more recent one over 16 year's ago. He is of the view that all paperwork in dealing with these 2 estates needs to be kept for the rest of his life. Is this correct? Needless to say, probate had been granted, the administration of both the estates completed and monies distributed to the satisfaction of the recipients over 15 years ago. The matter is now worrying the executor as he can't find all the paperwork done so long ago. Can anyone advise?

pochisoldi
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Re: Executor's responsibility

#324763

Postby pochisoldi » July 9th, 2020, 8:55 am

Until Clitheroekid comes along with chapter and verse...

My general rule is that in matters legal, once something non contentious is "completed" you keep the documentation for at least the limitation period.

Or put another way, you hold on to stuff until the threat of legal action has passed. If legal action does take place within that period, you then retain until it is over.

Personally I'd scan all documents as I got them, then when done, keep the physical documents for 6 years*, and only consider deleting the scans after 12 years*. In the meantime I'd probably keep the scans on my personal server (mirrored discs+offline copy), and on a separate archive CD/DVD.

(* actually until the January after the 6 or 12 years were up, when the annual, go through my records and shred the redundant stuff happens)

PochiSoldi

(Limitation period for E&W at least - see Limitation Act 1980 as amended http://www.legislation.gov.uk/ukpga/1980/58 )

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Re: Executor's responsibility

#324773

Postby PinkDalek » July 9th, 2020, 9:29 am

Even so and briefly, there may be information there which could be useful for the executors of any surviving spouse etc. In view of any unused IHT transferable nil rate band.

For close family matters I’ve kept the lot so far (some 40 years or so) & often find helpful info there!

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Re: Executor's responsibility

#324863

Postby yorkshirelad1 » July 9th, 2020, 3:22 pm

granretire wrote:A friend was executor of a couple of wills - the more recent one over 16 year's ago. He is of the view that all paperwork in dealing with these 2 estates needs to be kept for the rest of his life. Is this correct? Needless to say, probate had been granted, the administration of both the estates completed and monies distributed to the satisfaction of the recipients over 15 years ago. The matter is now worrying the executor as he can't find all the paperwork done so long ago. Can anyone advise?


From Which/Consumer Assoc publication (ISBN 978-1-84490-127-2) "What to do when someone dies", p. 181 (2012 edition)

Which: What to do when someone dies wrote:The administration is now finished. Bundle together all the papers, including the original probate and the signed copy of the accounts, and put them in a large envelope to be kept in a safe place, theoretically for 12 years (where there are any life interests under any trust in the will, the papers should then be kept for 12 years after the final distribution following the death of anyone with a life interest).


IANAL, and I suspect one (from the parish of Clitheroe?) may be along shortly

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Re: Executor's responsibility

#324867

Postby Snorvey » July 9th, 2020, 3:32 pm

Personally, I think that there's some merit in 'accidentally' destroying the whole lot. That's what governments, local authorities & large corporations seem to get away with from time to time.

staffordian
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Re: Executor's responsibility

#324888

Postby staffordian » July 9th, 2020, 5:06 pm

Snorvey wrote:Personally, I think that there's some merit in 'accidentally' destroying the whole lot. That's what governments, local authorities & large corporations seem to get away with from time to time.

When I worked in Local Government the rule for financial documents was six previous years plus the current. Every 1 April another years stuff was shredded.

I realise though that this doesn't necessarily equate to paperwork relating to Estate administration.

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Re: Executor's responsibility

#324892

Postby Lootman » July 9th, 2020, 5:14 pm

Snorvey wrote:Personally, I think that there's some merit in 'accidentally' destroying the whole lot. That's what governments, local authorities & large corporations seem to get away with from time to time.

If you anticipate the possibility of legal action in the future, then it might be better to destroy any incriminating documents but retain any exculpatory ones.

But I'd agree with PinkDalek and keep everything forever. You can always selectively get rid of documents later if and when you see what if any legal action arises.

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Re: Executor's responsibility

#324919

Postby Snorvey » July 9th, 2020, 6:24 pm

It's a risky business being and executor. Don't do it!

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Re: Executor's responsibility

#324989

Postby Mike4 » July 9th, 2020, 10:30 pm

Snorvey wrote:It's a risky business being and executor. Don't do it!


My understanding too. It's one of the few rôles where one's personal liability for mistakes is infinite and the reward for doing it, broadly zero.

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Re: Executor's responsibility

#324993

Postby Lootman » July 9th, 2020, 10:42 pm

Mike4 wrote:
Snorvey wrote:It's a risky business being and executor. Don't do it!

My understanding too. It's one of the few rôles where one's personal liability for mistakes is infinite and the reward for doing it, broadly zero.

For most lay people, it only arises for one's parents. In that case the risk is usually minimal and the job is easy for someone who is probably already very familiar with all the details needed.

I have been an Executor three times, for both parents and for an uncle. There were no problems and I enjoyed having control of the process and fully understanding it.

But if someone outside my family asked me then I might be flattered that they consider me worthy of the role, but I would most likely decline for the reason you gave. I'd need to be a will beneficiary to even consider it.

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Re: Executor's responsibility

#324998

Postby Mike4 » July 9th, 2020, 11:12 pm

Lootman wrote:
Mike4 wrote:
Snorvey wrote:It's a risky business being and executor. Don't do it!

My understanding too. It's one of the few rôles where one's personal liability for mistakes is infinite and the reward for doing it, broadly zero.

For most lay people, it only arises for one's parents. In that case the risk is usually minimal and the job is easy for someone who is probably already very familiar with all the details needed.

I have been an Executor three times, for both parents and for an uncle. There were no problems and I enjoyed having control of the process and fully understanding it.

But if someone outside my family asked me then I might be flattered that they consider me worthy of the role, but I would most likely decline for the reason you gave. I'd need to be a will beneficiary to even consider it.


The risk as I understand it, and admittedly vanishingly small but not zero, is that an unknown relative appears out of the woodwork a decade or two later waving a later will than the one you distributed, and claiming their rightful inheritance that you've distributed to all the wrong people. You are personally liable despite having no knowledge of this later will.

Mike4
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Re: Executor's responsibility

#325000

Postby Mike4 » July 9th, 2020, 11:14 pm

Oh and it need not be a relative, just someone with knowledge and proof of a superior will.

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Re: Executor's responsibility

#325002

Postby Lootman » July 9th, 2020, 11:17 pm

Mike4 wrote:
Lootman wrote:
Mike4 wrote:My understanding too. It's one of the few rôles where one's personal liability for mistakes is infinite and the reward for doing it, broadly zero.

For most lay people, it only arises for one's parents. In that case the risk is usually minimal and the job is easy for someone who is probably already very familiar with all the details needed.

I have been an Executor three times, for both parents and for an uncle. There were no problems and I enjoyed having control of the process and fully understanding it.

But if someone outside my family asked me then I might be flattered that they consider me worthy of the role, but I would most likely decline for the reason you gave. I'd need to be a will beneficiary to even consider it.

The risk as I understand it, and admittedly vanishingly small but not zero, is that an unknown relative appears out of the woodwork a decade or two later waving a later will than the one you distributed, and claiming their rightful inheritance that you've distributed to all the wrong people. You are personally liable despite having no knowledge of this later will.

That is certainly one risk. The other that I would worry about is a creditor coming out of the woodwork, especially if it is the tax man.

As an example the deceased made a PET and died within 7 years, and you failed to discover that, and cannot prove that you took all reasonable steps to discover it.

That of course begs the question of how much discovery work should you perform? Should you scour 7 years of bank statements and credit card receipts? I never did but I can understand someone making the arguement that you should.

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Re: Executor's responsibility

#325004

Postby chas49 » July 9th, 2020, 11:26 pm

Guidance at https://www.thegazette.co.uk/wills-and- ... ent/103450 says:

Unless a personal representative has acted fraudulently in wrongfully distributing, the court has discretion under s61 of the Trustee Act 1925 to totally or partially relieve a personal representative of personal liability where he or she has acted honestly and reasonably. This means that if you conducted a thorough and proper search for any wills made by the deceased and there was no evidence to suggest that a later will existed, it is likely that a court would exercise its discretion and not hold you personally liable for wrongfully distributing the estate.

It is therefore very important when you first start acting for an estate that you consider carefully whether any later will may have existed by making enquiries of the deceased’s relatives, friends and any professional advisors.


It also refers to a general limitation period of 12 years, though it also explains some exceptions to that.

granretire
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Re: Executor's responsibility

#325338

Postby granretire » July 11th, 2020, 8:14 am

Many thanks for all your inputs. I take it that my friend should have nothing to worry about and there is no need to keep all documentation for ever. If anyone could come up with 'chapter and verse' to confirm this, I would appreciate it.

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Re: Executor's responsibility

#325419

Postby genou » July 11th, 2020, 4:09 pm

granretire wrote:Many thanks for all your inputs. I take it that my friend should have nothing to worry about and there is no need to keep all documentation for ever. If anyone could come up with 'chapter and verse' to confirm this, I would appreciate it.

I take it this is English law. http://www.legislation.gov.uk/ukpga/1980/58 , specifically section 22 -

(a)no action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the share or interest accrued; and
(b)no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years from the date on which the interest became due.

granretire
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Re: Executor's responsibility

#325640

Postby granretire » July 12th, 2020, 4:31 pm

Thank you


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