Posted on 15 May 2019
We have had Executors ask whether or not they must carry out the terms of the Will in relation to charitable bequests. How would the charity know? "The family need the money more than the dogs home..."
Executors are legally bound to carry out the terms of the Will of the deceased if they take up their role as an Executor i.e. they start to take steps to administer an estate for example by collecting in or selling the deceased's assets and settling estate debts.
Furthermore, Executors are personally liable for their actions in administering a Will. Therefore if they have acted improperly or distributed the estate incorrectly or without due care and diligence, it is the Executor who will be personally pursued to rectify any errors made. That could come at great personal cost.
So how would a charity know if an Executor failed to settle a bequest? If the Executors need to take out a Grant to administer an estate, as part of the process, the Will is submitted to the Probate Registry. Once a Grant is issued the Will becomes a public document. As a public document, the Will becomes open to review by anyone who may wish to see it and Wills are reviewed for charitable bequests. More than 120,000 charitable bequests were identified in 2017 alone and the relevant charities notified of the bequests.
Executors are likely to be contacted directly by the charity with an interest in the estate. The Executor should take steps to provide the charity with a formal response.
If the bequest is a modest legacy the charity is more likely to require basic details of when they might expect to receive their legacy. If a charity is a residuary beneficiary of an estate, Executors will have a duty to account to the charities in full for their actions (as they should do in all cases to residuary beneficiaries).
Executors dealing with an estate with charitable bequests must ensure that they fully comply with all of their duties. They will need to demonstrate that they have considered and taken steps to mitigate any risks associated with claims arising from both known and unknown sources and they should be mindful of the pitfalls of deviating from statutory claim time-frames before distributing an estate.
Whilst Executors have a legal duty to carry out the wishes of the deceased as per the terms of the Will, charities equally have a duty to act in their charity's best interests. As such Executors should not be offended nor surprised by charities contacting them and requesting information as regards any bequest they are legally entitled to. Many Executors do not appreciate that charities are regulated and audited and once a charitable legacy is identified that charity is required to take steps to collect in what is rightfully theirs.
Bearing the above in mind, wherever a Will leaves a substantial legacy or part of the residuary estate to charity a higher level of competency will be required of the Executors. It is therefore advisable to seek the assistance and advice from a specialist probate solicitor rather than to tackle the administration unsupported.
For more information on this topic, please contact Caroline Alexander.