When someone dies, work must be undertaken to organise the assets that make up their estate and distribute them in line with their wishes. This process is often referred to as probate across England and Wales, however, the correct term for winding up an estate in Scotland is ‘executry’. Here, our Wills & Estates solicitors offer qualified guidance on the role of an executor and what you should consider before appointing someone as your executor or what to do if you have been appointed.
An executor has the responsibility of dealing with the deceased’s finances and possessions. The distribution of the deceased’s assets must follow either the instructions left in the Will or the rules set out in the Succession (Scotland) Act. The executor has the legal authority to handle the property making up the estate, distributing it according to the wishes of the deceased. As an executor, you should be aware that you can be made liable for any mistakes that occur while carrying out this role. If the deceased did not name an executor in a Will or no Will was ever made, an executor can be appointed by the Sheriff Court.
You can act as an executor as long as you are over 16 years old and you are not a witness to the Will. It should be noted that someone who is due to inherit from the estate can also act as an executor. It is good practice to appoint more than one executor in case one of the people named is unable to carry out the role. While an unlimited number of executors can be appointed, it is not advisable to choose more than three as this can make it difficult to make decisions.
The duties of an executor are extensive, but ultimately, they are responsible for administering the deceased’s estate. At the outset, the executor will generally have to register the death and make funeral arrangements. Beyond this, the executor's duties can be divided roughly into four key areas:
This involves accessing and gathering large amounts of paperwork. As well as informing agencies such as the DWP and the Passport Office of the person’s death, the executor will have to find out what debts were owed and identify any money owed to the deceased and assets they held at the time of their death. A detailed inventory of all estate assets must be prepared, and some assets – such as property or antiques – will need to be valued. Once the whole estate has been valued, liability for Inheritance Tax (IHT) must be calculated. Any IHT due must be paid before Confirmation can be applied for.
The completed inventory must be submitted to the Sheriff Court to obtain Confirmation. This formally appoints the executors and allows them to access money and other assets that belonged to the deceased. The Confirmation, or Certificates of Confirmation, can be sent to people or organisations who hold or register the assets. By doing so, this enables the assets to then be cashed, sold or transferred to a beneficiary. For example, a Certificate of Confirmation will have to be sent to a bank with whom the deceased held an account before the funds will be released. Similarly, a Certificate of Confirmation is required before the sale or transfer of any property the deceased owned.
After Confirmation is obtained, the executor can open a bank account in the name of the executors and contact banks, building societies and other organisations to transfer assets belonging to the deceased. Property and shares can be sold to pay off any debts or expenses. Alternatively, and if instructed in the Will, these assets can be directly transferred to the beneficiaries. The executors are responsible for keeping accounts showing any sums paid to beneficiaries or creditors, as well as reporting income tax of the deceased and income received during administration of the estate.
Finally, the executor must distribute the estate according to the wishes written in the Will. Individual family members will have a legal right to claim from the estate and the executor must find out if there are any plans to do so. The standard practice is to wait six months before making final payments to allow any unexpected creditors or beneficiaries to come forward.