The National Will Register

27 April, 2018 10:38:04

Devastavit: The Legal Pitfalls For Executors

Being an executor can be a huge responsibility. Probate law in England and Wales is notoriously tricky to navigate at the best of times, and executors can and will be held responsible for anything that goes wrong. The Trustee Act 2000 imposes a statutory duty of care on all executors; the liability for breaching this can be unlimited and personal to the executor rather than the estate. The fact that executors’ insurance exists suggests the extent of the possible financial implications of acting in this capacity.

The strictness of legislation relating to executors’ responsibilities is intended to provide crucial protection to the estate and its beneficiaries. The significant liabilities that executors face go hand-in-hand with the considerable power they wield over an estate, particularly where executors are also acting as trustees, as is commonly the case. An unconscientious or even unscrupulous executor can be a threat not only to estate assets, but to the inheritance of a testator’s friends and family, so it’s understandable that comprehensive protections are in place to dissuade executors from mismanagement of estate funds, conscious or otherwise.

In cases where an executor has misapplied funds from an estate or gone beyond their remit and spent estate monies extravagantly, it might be possible to bring a legal claim, known as a Devastavit claim, against them. This Latin term means “he has laid waste”; appropriately, such claims can be lodged where an executor’s actions have squandered estate funds or fallen short of the responsibilities defined under section 25 of the Administration of Estates Act 1925.

Examples of activities that might incur a Devastavit claim are selling estate property for less than its market value, mishandling the intestacy rules where the deceased died without a will, or even distributing estate funds incorrectly. These claims allow for creditors or beneficiaries of the estate to seek remuneration from the executor in question, and also—perhaps unsurprisingly—to remove their executive powers, preventing further misadventure.

As with all legal claims, there are strict protocols to be followed, so it’s vital that creditors or beneficiaries seek appropriate legal advice where a Devastavit case might exist. It’s not wise to simply sue the executor in question: there are requirements covering exchange of information between concerned parties, for example, which need adhering to. In all cases, professional legal advice should be sought before any claims are launched.

The possibility for things to go awry is one of the most common reasons that many individuals turn to professional executors. A professional executor is charged with acting with the utmost level of care and attention to ensure that the estate is efficiently and properly administered, not least because the duties and responsibilities afforded to them are likely to be interpreted more strictly by the courts.

Nevertheless, many still opt for lay executors. Indeed, there are certainly many individuals across the country who are nominated as executors of their friends’ and loved ones’ estates without even knowing that this is the case; in all probability, the portion of laypersons who remain unaware of the duties entailed by the role itself is equally significant. Associates of APS are well placed to advise in all these circumstances, and to ensure that the executors of our clients’ wills are thoroughly prepared for the role, a point that includes knowing where to turn for professional guidance. This is not just an opportunity for further referrals: it’s also a chance to ensure that our clients’ estates are duly—and responsibly—administered.

Original article published by: Today's Wills and Probate
Date: Thursday 26th April 2018
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