Leading barrister issues advice to executors over ‘lifelong’ responsibilities

Executors are being advised by a leading barrister that they are legally obliged to reopen the files of administration where evidence of outstanding disbursements or bequests emerge after probate is granted.

If they fail to act when required, executors could face legal action and financial penalties. The warning comes as inheritance recovery specialists, Perane, reveals that charities and other beneficiaries are missing out on millions of pounds due to them because of these unrealised assets, which executors are failing to distribute, either through ignorance or wilful neglect.

Stephen Hackett of 3 Hare Court has provided a legal “opinion” on the matter on behalf of Perane. In his “opinion” he concludes that the role of the executor continues for life and that he/she may be personally liable if they fail to fulfil their obligations to disburse the estate in line with the expressed wishes of the deceased.

Perane sought legal advice because it has developed a search engine capable of identifying historic share ownership which may have been missed in the original winding up of an estate. Residual sums, often left to charities, are valuable because they have not been subject to inflation. Working with the beneficiaries, Perane must contact the original executor to co-operate and realise the funds to repatriate them.

Difficulties arise because the original executor may no longer be in post, the files may be difficult to locate and there is little financial incentive to reopen the administration because the executors’ fees have already been paid at the time the original winding up. Barrister Stephen Hackett said:

“The executor’s obligation to get in an estate’s assets requires the use of due diligence. I am doubtful that an executor could be said to be using due diligence if Perane has drawn their attention to an asset, and indeed a means of realising it, and that notice was ignored or the opportunity refused.”

If an executor were to be found to be in breach of their duty to the beneficiaries described above, they would in my view face litigation in which they would face a substantial risk of being unsuccessful. This may well result in personal liability for the executor and/or adverse costs orders.”

Information obtained through Perane’s search engine can be analysed to indicate share assets that are unclaimed and, in addition, where share ownership has been transferred to avoid tax obligations. With over £50bn of lost and unclaimed assets held by financial institutions, the company estimates that £40m of shares and £660m of pension funds are waiting to be redistributed to the charitable sector. Perane CEO Bruce Cane explained:

“This is an important legal opinion because some executors appear to believe that they either don’t have to distribute assets when they are found, or simply can’t be bothered to do so because time has passed and their fees paid.

Perane works to repatriate these funds to the individuals and organisations to whom they rightfully belong. If you were owed that money or those shares, you’d want to know the legal executor was doing their job.Sometimes, the beneficiaries are unaware of the original bequest because the legacy may have been dormant for 20 or 30 years.

At Perane, we offer a professional service in cases of historic legacies, working with all parties, the beneficiaries and, we hope, the executors, to complete the full disbursements of the estate and the provisions of the will.”

Read more stories

Join over 6,000 wills and probate practitioners – Check back daily for all the latest news, views, insights and best practice and sign up to our e-newsletter to receive our weekly round up every Friday morning. 

You’ll receive the latest updates, analysis, and best practice straight to your inbox.