That's a rather fine distinction. But the point is that his duties are to all of them, including the ones he doesn't know about.
Simple: Suppose that instead of the house being sold out of the estate (with the proceeds being divided among the heirs), title in the house is transferred to the heirs directly, to all of them. Then it would be up to the heirs to decide whether the house is to be sold or not. I don't know what rights minority shareholders might have to force a sale opposed by the majority, or to veto a sale favoured by the majority, but I fondly imagine that in general some kind of vote (by shareholding) would be involved.
Oh yes he does. OK, not always, but he does if a deed of variation should should become involved, doesn't he?
And if there is a possibility that problems might arise in proceeding with a title transfer without sale, followed by a possible sale, then he might be failing in his duties if he did not sound out the heirs in advance, if only to learn whether there might be a problem.
If the Will directs that the property be registered into the names of one or more beneficiaries, then that is what the Executor must do, and without discussion or a vote (always assuming the estate is sufficiently solvent to be able to obey that instruction while able meet its IHT liability). But if the Will merely allocates percentages of the estate or absolute amounts of money, then the executor must sell any property, and again without any permission or voting by the heirs. Of course one or more heirs can approach the Executor in their role as potential buyer(s) and offer to buy the property, and the executor would normally deal with them as he would with any other potential buyers.
But the executor will not be involved in any of that, after the estate is no longer the owner of the property.
Then it will be the other way around, where the beneficiaries execute any Deed(s) without needing the agreement or permission of the executor, and the executor will be required to administer the Will amended by the deed.
I don't follow that, but of course no one will ever be forbidden from sounding out anyone about anything.
Fair enough, but the will might direct that it be registered into the names of "my children" without specifically naming them. Then what can the executor do but make enquiries to the end of compiling as nearly complete a list of who exactly the children are, and risk unknown ones popping up later?
I don't think that's true. After all, intestacy would be equivalent to "allocating percentages of the estate", and I'm not aware of any rules which would compel a sale in such a situation - to take a typical example where a widowed parent dies intestate, leaving the house, contents, and some money; there are two children who by intestacy rules inherit 50% each. The money in the estate is enough to cover IHT and funeral and executry expenses, with a bit left over. There is no reason why the house would
*have to* be sold as opposed to transferred into the joint names of the two children, not even if the executor *is* one of the children and has been living in the house in question (looking after the parent) and wishes to continue living there at least for the time being. But the feasibility of this approach would be predicated on the second child being happy to defer getting his share of the inheritance until the house is sold in the fullness of time when the first child is ready to move out.
I didn't say he would be. All I wished to imply was that if unknown heirs did not make themselves known, they should be presumed thereby to have expressed their intention to relinquish any right they might otherwise have had to prevent the house being sold.
What I was trying to say is that if the executor has any discretion over whether to sell the house out of the estate or to distribute shares in the unsold house, then the consequences of that decision could be adverse to one or more of the heirs, and they could then come after him for compensation unless they had indicated agreement with the proposed plan of action.
It is simply the standard practice of executors, and it is the one that can never be fairly criticized, second guessed or challenged in court.
Of course the heirs could unanimously request some other action and agree to indemnify the executor for that, but if there is some second child being less than happy to delay receiving their bequest, or one or more heirs who are incompetent or not yet adult, and so are unable to consent to something different, then no experienced executor would dream of pursuing any other course of action than disposing of the estate's property through sale.
But there is never the right to prevent the property of the estate from being sold, so any heirs discovered later will not have been disadvantaged.
In the light of even the slightest complication, the sale of the property would simply proceed, whether that is with or against the wishes of one or more heirs. The executor does not have merely the discretion to sell the estate's property, he has the right and most usually the duty to do that.
OK, but if it's merely standard practice, then to say that's what they
*must* do is overstating things rather.
Also, we're not really talking about the same kind of executors. It seems you have in mind experienced (probably professional) executors who act independently of estate and heirs, while I have in mind the (what I would think to be the more usual) situation where the executor is a lay person at least close to the family if not himself one of the principal heirs.
Particularly with intestacy an executor would have to take into account the likeliest presumed (but not formally stated) wishes of the deceased, and someone close to the family would be in a better position to guess these than a professional outsider. I'd have thought that in many cases the deceased would prefer the family home to remain in the family.
As a matter of interest, do you have a feeling for roughly what proportion of wills appoint professional executors (typically the solicitor who drew up the will or, horror of horrors, the testator's bank manager), as opposed to appointing one of the heirs as executor, or indeed a non-professional non-heir? In intestate cases, the court would appoint an executor, and presumably as a rule the closest heirs would agree amongst themselves who should be executor, and that person would then petition the court to appoint them. Is it your feeling that this would almost always be the case?
One final feeling question: What proportion of deaths are intestate?
Fair enough, but frankly that's putting the executor's own interests first. Charge the estate a fortune in fees and act in such a manner to minimise the possibility of being sued, even if this involves acting arguably not in the best interests of the heirs, and (often) therefore not in best harmony with the deceased's undocumented wishes.
A lay executor close to the family would, I admit, feel his hands tied if one or more of the heirs wanted their cut now (but then if the others wanted to keep the house in the family they could always buy them out), but might tend to take a different view in the case of minors (if their guardians agree). Of course things can get difficult when the executor is one of the heirs and so has an axe to grind.
I didn't mean the property of the estate, I meant the house *after* the estate had discharged it into joint ownership of an incompletely defined group of individuals [or perhaps that's not possible, though Big Les Wade implied that it is]. Is there still no right to prevent a sale if you take the complication of ill-defined ownership out of the equation? Suppose a house is jointly owned in equal shares by three individuals. One wants to turn his share into cash. Can he force the sale against the will of the other two or can the other two -by majority vote- prevent the sale?
Well, in the context of the Guernsey problem which sparked off this subthread that's OK then, there is no problem. Instead of lumbering the family mansion with a defective title, the executor (mindful that there is a chance, however slim, that an unknown heir might turn up years down the line) simply exercises his right to sell the house despite what the will says, and just sells the house to the known heirs. The price would in principle not matter much since the proceeds would go straight back to them, but ought to be at market value so as not to disadvantage those pesky illegitimates.
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