Skip to content Skip to footer
Enquiries Call 0800 652 8025
Parent and adult child talking over coffee

Executing a Will – don’t bury your head in the sand

An executor of a will has recently been jailed in the High Court for failing to comply with his duties as an executor.

An executor is a person who has the responsibility of administering a deceased person’s estate. They are appointed by a person’s will and their role begins when that person dies.

Executors have a whole host of responsibilities, including:

  • organising the payment of any tax due, such as inheritance and income tax
  • applying for any applicable tax reliefs
  • paying the deceased’s liabilities
  • identifying and collecting in all the assets
  • locating the correct beneficiaries
  • applying for a grant of probate (if required)
  • distributing the estate to the beneficiaries in accordance with the deceased’s will

Failure to perform these obligations can leave an executor personally liable for matters concerning the deceased’s estate. Furthermore, it is incredibly important an executor fulfils their duties, or they could find themselves being subject to serious penalties.

The recent case of Totton and Another v Totton provides a graphic illustration of this.

The case concerns the estate of Hazel Totton, who died in July 2019 and left a will appointing her son Mark Totton, aged 51, as executor. She left half of her estate to Mark and the other half to her grandchildren, Hollie Totton and Daniel Washer.

The primary asset in the deceased’s estate was her house, which sold in April 2020 for £425,000. To date Hollie and Daniel, of Essex, have still not received the inheritance they are entitled to in the will and Mark Totton has failed to account for their inheritance.

Hollie, 25, and Daniel, 19, appointed solicitors who wrote to Mark over a period of eight months requesting him to administer and distribute the estate. No reply was received to any of these letters. Hollie also contacted Mark via telephone calls and texts asking when her and Daniel would receive their inheritance. In October 2020, Mark advised Hollie they would receive their inheritance “within days”.

In April 2021, Hollie and Daniel brought a claim against Mark Totton calling for a full account of the deceased’s estate and for the same to be distributed. With Mark having taken no action, the court made an order in March this year, directing him to provide a full account of the deceased’s assets and their location to Hollie and Daniel’s solicitors within three weeks. Again, Mark Totton failed to take any action.

The court produced further official documents in August which were similarly ignored and Mark Totton failed to attend subsequent court hearings later that month, and then again in September.

A warrant was executed and Mark Totton was brought before the court on 15th September. The court provided Mark Totton with several chances to comply with his duties as executor, namely, to correctly distribute the estate. He admitted that he had “buried his head in the sand” regarding the administration of the estate and he received a four-month prison sentence. The court gave one final deadline, stating that the jail term would not take effect so long as the estate was distributed by 6th October.

The following day Mark Totton was jailed for six weeks for contempt of court after failing to comply with the judge’s order to set out the assets of the estate within a certain time frame and to give a full account of his dealings with it.

The court also noted that he had not instructed solicitors to assist him with his duties, which would have likely prevented proceedings being brought against him.

Acting as an executor is sometimes straightforward, however it can very quickly become confusing, convoluted and time-consuming. Here at Clarke Willmott we have the expertise to assist executors with as much or as little as is felt necessary. Contact us online or call 0800 652 8025 to arrange a consultation.

Posted:

Your key contact

Carolyn Watson

Solicitor

Manchester
Carolyn specialises in drafting Wills and Lasting Powers of Attorney as well as dealing with all aspects of Estate Administration. Carolyn offers a straightforward approach to her work and takes pride in being a safe pair of hands for clients.
View profile for Carolyn Watson >

More on this topic

Wills, trusts, probates and estates

Inheritance tax planning in uncertain times

In this article we look at how to carry out inheritance tax (IHT) planning in a way that is timely and does not lead to an unwelcome amount of immediate financial detriment.
Read more on Inheritance tax planning in uncertain times
Wills, trusts, probates and estates

How to prevent will disputes

With an increase in people disputing Wills every year, lawyers are urging people to take professional advice early and avoid financial and familial stress later.
Read more on How to prevent will disputes
Wills, trusts, probates and estates

Don’t leave it too late: IHT on gifts skyrockets

The amount of inheritance tax (IHT) paid on gifts has seen a 153% increase since 2011, lawyers are warning people to address their financial planning to avoid being caught out.
Read more on Don’t leave it too late: IHT on gifts skyrockets

Looking for legal advice?