Ask Money: who makes the estate decisions?

Nick Onslow of the RU Group helps a reader with a question about wills.

My wife and I have made mirror wills to leave all our assets to each other and, on the death of the second person, in equal amounts to our son and daughter. We have nominated two executors, one a partner in our solicitor’s firm and the other the survivor when one of us dies.

My question is: after grant of probate, which of the two executors decides how to dispose of the estate (sell shares, for example)? We both have substantial portfolios.

We are considering appointing an IFA who would have an opinion on the best way to realise all our assets. I am not sure about the extent and responsibility of executors, but if we appointed an IFA, would their opinion override the executors' powers, and is there a time window in which shares must be sold after the death of the shareholder?Albert Clayton, by email

Nick Onslow at the RU Group replies: The question is a good one, as clearly it is better to check now to ensure the right outcome is achieved. The Claytons have simply left everything to each other and then the children equally. They have appointed each other and their solicitor to act as executors. However, it is unclear whether there is an order to how the executors have been appointed.

If they have nominated each other first and the solicitor as a back-up, then on first death the survivor will be responsible for the other’s probate, and on second death the solicitor will be responsible for that probate.

If they have appointed each other jointly with the solicitor, then they must act together. They can of course ask the solicitor at the outset to renounce being an executor, but the solicitor has the option to refuse.

On second death it would be unusual for a professional such as a solicitor to act outside the wishes of the beneficiaries, which in this case would be the children. The only point I would make is that by using a solicitor as executor the costs could be far higher than they would be if the children were to act themselves. The costs may be fixed, but they may be linked to the value of the estate and be much higher than expected. If appropriate, Mr and Mrs Clayton could either rewrite their wills nominating their two children to act as executors, or write a codicil revising their executor choice.

Regarding shares, these are held by a person who has died until probate is concluded and the estate distributed. They don’t need to  be sold immediately. Appointing a financial adviser now would allow the Claytons to understand what assets they have and how they are taxed both in life and on death, their choices and the options they have for mitigating any inheritance tax liability.

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