Role of Executor

What is an Executor?

It is a person who is appointed either by a Will or, when there is no Will, by the Sheriff Court to deal with the administration of the estate of a person who has died.

Anyone can be appointed as Executor provided they are over the age of 16 and have capacity to do so. However it is advisable to have more than one person appointed and therefore any Executor may be acting alongside someone else. It should be someone the granter of the Will trusts to carry out their wishes. Some people choose to have a professional Executor appointed under their Wills and our nominee company Gilson Gray Nominees Limited is happy to act if and when necessary.

If the appointment is made by the Court and not in terms of a Will it is usually the spouse/civil partner or children who are appointed by the Court. There is a process to follow so this aspect leads to additional time and adds additional expense.

The role of Executor is not a paid role, although expenses can be reimbursed, and can take up a lot of time. It also carries a lot of responsibility. All these factors should be considered carefully both by the person making the Will and the Executor deciding whether to accept the appointment.

Do I need to accept the appointment as Executor?

Usually the person making the Will will have discussed the proposed appointment with the chosen Executor prior to signing but this is not always the case and, of course, circumstances can change. An Executor can decline to act before the estate administration has commenced provided they are not the sole Executor. In the case of a sole Executor, it will be necessary to appoint someone else to act before that Executor is able to decline office.

If the appointment is accepted and at a later stage the Executor is not able to continue then they can appoint someone else to act in their place, assuming they can find someone willing to take over the duties.

What is the role of an Executor?

The first thing an Executor must do is review the Will to check for any funeral instructions (if not already known to those making such arrangements) and also to ascertain the beneficiaries and potential beneficiaries in the estate. Thereafter, the Executor starts investigating the assets and liabilities held by the deceased at the time of their death.

An inventory of assets and liabilities is prepared and used to complete the application for Confirmation. Confirmation is the document issued by the local Sheriff Court which gives the Executor the right to deal with and ingather the estate. An Executor needs to ensure that they have contacted all the relevant organisations where the deceased may have held assets (or had liabilities) including DWP, HMRC and pension providers. They also need to ensure any insurances are put into the name of the Executors in the event of any claims during the administration period.

On finalising the inventory of the estate, it is necessary to ascertain if there is any Inheritance Tax payable on the estate (broadly when estate is over £325,000 and not passing to a spouse or charity). If there is Inheritance Tax payable the Executor has to prepare an Inheritance Tax account and arrange for the payment of the tax within 6 months of date of death. It can take longer to ascertain the value of the estate and advice may be required.

Creditors have 6 months to lodge a claim on the estate for any outstanding sums and therefore the estate should not be distributed prior to this. Please note that if an Executor agrees to distribute the estate prior to this then they could be personally liable for any claims by creditors.

An Executor may also have to deal with a Legal Rights claim made by a spouse/civil partner or children when a provision is not made for them in terms of the deceased’s Will or sometimes in place of a bequest under the Will. This is an area of Scots Law which needs to be dealt with carefully and most Executors will require to seek formal advice.

Once Confirmation has been granted the Executor is able to ingather the estate or transfer assets to the beneficiaries (depending on their wishes). It may also be that a trust has been set up. In such cases it may be the Executor is also appointed as a Trustee. This may arise, for example, where there is an underage or vulnerable beneficiary. There are separate trustee duties which must be considered.

A tax return to report the income received during the administration may need to be submitted. In addition, a full account will need to be prepared to confirm the estate and its distribution in terms of the Will or the laws of intestacy (which are used where there is no Will).

The Executor needs to contact the beneficiaries, advise them of their entitlement and arrange for payments to be made to them.

A word of caution

Please be aware that an Executor may be held personally liable if they have not taken the proper steps in dealing with the administration and completing all of the relevant reporting requirements. It is for this reason that many Executors choose to engage a professional firm to guide them through the process – the cost of which is borne by the deceased’s estate.

The Gilson Gray team

Our experienced Private Client Team will be able to assist with Estate Administration on your behalf and guide you through to make the whole process quicker and simpler for you.

If you would like to find out more about Private Client services and the role of Executors, please click here.

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.