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It was always considered good practice to appoint your husband or wife as the Executor and Trustee of your estate. This would be done when making a will. Many couples come in to see us at Emmersons Solicitors to make their wills together. It may be the case that they want to leave their estates to each other and, while they are at it, appoint each other to sort out their estates after their deaths.
What could be simpler?
You know where everything is in the house, you may have discussed your bank accounts and other assets, you even live together.
Now, fast forward ten years... the ﬁrst of you has just died, and the survivor has dementia, the survivor is, of course, the Executor and Trustee of their deceased spouse’s estate.
Let’s consider Fred and Sue. If Fred has just died and Sue, his Trustee and Executor, has dementia how is Sue going to manage to administer Fred’s estate? She will need to work out all of the ﬁnances, ﬁnd out the assets from a series of ﬁnancial institutions, are there shares, how many bank accounts are there, what type of account, joint names or in the sole name of Fred, what happens to those accounts following Fred’s death?
The reality is that Sue is not going to be able to deal with any of this. Yet she is the named Executor. Who will deal with the council tax and the utility bills, Sue can’t even sign any documents to sell her own home.
In this circumstance, another family member will have to apply to the Court of Protection to be appointed as Sue’s Deputy and to step into her legal shoes. This will be quite a task; it will mean that the person applying to be a Deputy will have to produce details relating to their own bank accounts. If granted the Deputyship they will have to arrange an annual insurance policy, they will have to manage all of Sue’s ﬁnancial affairs, including the Executorship of Fred’s estate, and they can be subject to a ﬁnancial review of Sue’s affairs at any time.
This takes the form of an interview that can last up to three hours and which entails an ofﬁcer investigating all spending and investments made on behalf of the Patient, in this case, Sue.
All of this because Sue and Fred thought that appointing each other to manage their estates after death would be straightforward.
Following the death of a partner, it can be extremely stressful trying to come to terms with day to day life. It may be the case that there is very little to be attended to legally. However, in many cases that I deal with, there are lots of shareholdings with many different companies and all in the name of the deceased.
There may be investment properties solely in the name of the deceased, or they may have been a partner or director in a business that did not involve the survivor. In cases such as this, there can be quite a lot of work entailed to recover the assets left. Could you cope with attending to all of this as well as dealing with the death of someone you loved dearly?
Your spouse may struggle to deal with post-death tax returns, they may feel totally overwhelmed by ﬁnancial paperwork, they may inadvertently pay the wrong amount of money to a beneﬁciary instead of deducting certain items such as Inheritance Tax or loans or Department of Work and Pensions Overpayments.
When I asked one of our Trainee Solicitors why she felt that Emmersons should be appointed as Executors for our clients, she reeled off quite a list of reasons including;
Author: Jacqueline Emmerson