Gavin Howe
When it comes to the rights of an executor versus those of a common-law wife, there are a few key differences to note. Firstly, an executor is the person or entity nominated by the deceased to administer their estate and carry out the instructions in their will. On the other hand, a common-law wife refers to an individual in a long-term relationship who cohabits with their partner on a full-time basis. While many jurisdictions recognize common-law marriages, it's important to note that common-law partnerships do not provide the same legal rights as traditional marriages, especially when it comes to inheritance and estate administration. In most cases, a common-law wife would not automatically inherit any part of her partner's estate unless explicitly stated in a will. Executors, on the other hand, have a fiduciary duty to adhere to the terms of the will and distribute the estate's assets accordingly.
Executor vs Common-Law Wife:
| Characteristics | Executor | Common-Law Wife |
|---|---|---|
| Legal Recognition | Yes | No (in the UK) |
| Rights | Nominated by the deceased to administer the estate as per the will | Minimal rights; may not automatically inherit any of the estate |
| Duties | Carrying out instructions in the will, paying taxes, handling day-to-day tasks | N/A |
| Requirements | Must act promptly; must be over 18 | N/A |
| Liability | Personal liability for adhering to the terms of the will | N/A |
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What You'll Learn
Common law marriage doesn't exist in the UK
Common-law marriage is a concept that refers to a marriage-like relationship between two people who live together for a certain period of time without getting married or registering their partnership formally. While this type of arrangement is recognised in some countries, it does not exist in the UK.
The concept of common-law marriage dates back to medieval times in rural England, when a man and a woman could be considered married simply by saying they took each other as husband and wife. However, in modern times, the only way to achieve a recognised marriage in the UK is to get legally married. Common-law marriage is no longer applicable, and cohabiting couples do not have the same rights as married or civil-partnered couples.
Unmarried couples living together may want to consider creating a cohabitation agreement, also known as a living together agreement, to outline their rights and obligations towards each other. This can include protections similar to marriage, such as equal shares of assets or access to pensions. Additionally, each partner should make a will to ensure that their assets are distributed according to their wishes in the event of their death.
In terms of rights, an executor named in a will has the responsibility to carry out the instructions of the deceased person's will. They are in charge of sorting out the estate, including property, money, and possessions. While there are no rules against beneficiaries being executors, it is a complicated and sometimes difficult job. If there is no will, the courts will refer to the Probate Code to determine an administrator for the estate.
In summary, common-law marriage does not exist in the UK, and cohabiting couples do not have the same rights as married couples. Unmarried couples can protect themselves by creating cohabitation agreements and wills. Executors, on the other hand, have the right and responsibility to execute the instructions in a will, and they can be anyone from spouses to professionals, depending on the wishes of the deceased.
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Common law partners have minimal rights
The term "common-law marriage" is often used to refer to unmarried, cohabiting heterosexual couples in England and Wales. However, this is a social usage that does not confer the legal rights and obligations of a formal marriage. In this context, common-law partners are not legally recognised as spouses and have minimal legal rights.
While common-law partners may be recognised for certain purposes, such as means-tested benefits, they generally have no special rights in areas like property law. For example, if the house is solely in one partner's name, the other partner does not automatically have a right to share in the property upon separation. However, they may be able to prove a beneficial interest if they can demonstrate financial contributions and an understanding of shared equity.
In the event of a breakup, common-law partners must rely on reaching an amicable agreement regarding finances, property interests, and arrangements for any children. Drawing up a cohabitation agreement or declaration of trust beforehand can help establish rights and protect assets. While not a legal requirement, this type of legal paperwork can provide clarity and avoid complications.
It's important to note that the concept of common-law marriage varies by jurisdiction. In some places, common-law marriages are recognised and confer similar rights to formal marriages. For example, in certain US states, common-law marriages are valid if the couple lives together, intends to be married, and holds themselves out as married to the community. Same-sex couples can also be considered common-law married in these jurisdictions.
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Executors can be held liable for decades
The role of an executor is to carry out the instructions left in a will. This can be a complicated and time-consuming job, and it's not unusual for the process to take several months. Executors are under a duty to administer and distribute the deceased's estate correctly, and they can be held personally liable for decades if they fail to perform this duty as required.
Executors can also be held personally liable for the debts of the estate up to the value of the estate. If they distribute the estate and leave a creditor outstanding, that creditor may bring a claim against the executors, even if the executor had no knowledge of the debt. In the case of an insolvent estate, there are specific legal rules that determine which creditors are paid first, and executors must comply with these rules to avoid personal liability.
It is important to note that being nominated as an executor in a will is not absolute, and there are certain classes of people who are unable to serve as executors. For example, a person who feloniously and intentionally kills the decedent or a person convicted of elder abuse or financial abuse will not be able to serve as an executor. Additionally, if the nominated executor fails to petition the court for administration within 30 days of knowing about the decedent's death, they may be held to have waived their right to appointment.
Given the potential risks and complexities involved in serving as an executor, it is recommended to seek professional advice or support from a probate solicitor, especially when dealing with an insolvent estate or investing estate assets.
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Spouses can't be disinherited
A will is a binding legal document that outlines someone's instructions for their estate. However, it is not usually possible to completely disinherit a spouse. Most states have a right of election, which gives the spouse a share, no matter what. This is usually a set fraction, typically one-third to half of the estate.
The only way to get around a spouse's right of election is through a prenuptial or postnuptial agreement, where both parties agree to waive their elective shares. Even then, these agreements are not always upheld. If a prenuptial or postnuptial agreement is not in place, a surviving spouse may contest the validity of the will, and they will likely be entitled to an elective share.
Outside of spouses, children, and possibly grandchildren, most heirs do not have inheritance rights. Therefore, disinheriting extended relatives can be as simple as not mentioning them in the will. However, if they were previously included in an older version of the will, their names must be removed, and it must be clear that their omission is intentional.
While spouses cannot be disinherited, they also do not need to be informed about the contents of the will. A will can be written without notifying the spouse, and they will only be notified of its contents after the testator's passing.
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Probate code guides intestate estates
When an individual dies without a will, their estate is referred to as an intestate estate. In such cases, the courts will refer to the Probate Code for guidance on how to administer the estate.
Probate Code Guides for Intestate Estates
The Probate Code provides a list of individuals who are entitled to serve as the administrator of an intestate estate, in order of priority. The court must appoint a person with higher priority who is otherwise eligible to serve and has not waived the right to appointment. However, if a person with higher priority fails to claim appointment, the court may appoint any person who does claim appointment.
In Texas, the State Law Library publishes legal research guides to help individuals and attorneys locate the legal information they need regarding probate law, including intestate succession and administration. These guides cover topics such as wills, various types of administration, will contests, and probate alternatives, with references to statutes, court rules, and case law.
In New York, the Surrogate's Court has exclusive jurisdiction over probate and estate administration, ensuring wills are validated, assets are distributed properly, and fiduciaries fulfill their legal obligations. The Surrogate's Court handles both testate and intestate estates, resolving disputes among beneficiaries, creditors, and other interested parties. When there is no will, the court applies New York's intestacy laws to determine heirs and oversee asset distribution. Fiduciaries must provide detailed financial records, and the court can hold hearings, compel testimony, and issue rulings that shape the estate's final disposition.
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Frequently asked questions
An executor is the person or entity nominated by the deceased person (the “testator”) in a Will to administer the estate of that person as directed by the Will.
An executor has the right to sort out the deceased's estate (property, money and possessions) and carry out the instructions in the will. The executor does not have to accept the nomination.
A common-law wife is an individual in a long-term relationship that is cohabiting in one address with her partner on a full-time basis. The term is not an official legal term and there is no common-law marriage in the UK or North Carolina.
A common-law wife has minimal rights. She will not automatically inherit any of her partner's estate unless he leaves a will indicating that he wishes for elements of, or his whole estate to pass to her.
An executor has more rights than a common-law wife as they are legally allowed to administer the estate of the deceased. A common-law wife does not have legal rights over her partner's estate unless he leaves a will stating otherwise.
