If you have been appointed as an executor of a Will in Scotland, the duties may be unknown to you. Dealing with the winding up of a deceased person’s estate can be stressful.
This article seeks to tell you what the role involves and to provide you with answers to some of the most commonly asked questions.
What is an executor?
When there is a Will
Where there is a Will an executor is the person appointed by the deceased to administer the estate, that is to deal with their possessions and their finances, in accordance with the Will and with the law.
When there is no Will
When a person dies without a Will an executor may be appointed by the Sheriff Court. In both cases the executor has the authority as well as the responsibility to administer the estate and may be held liable for any errors or mishandling of the estate assets.
An executry is the term used to describe the winding up process.
Who can be an executor of a Will in Scotland?
Anyone over the age of sixteen may be appointed although as some of the duties may be considered hard and may take up a lot of time it would be sensible to think carefully about whether a young person could easily fulfil those duties. This is particularly so where the Will sets up a Trust which may run for many years.
An executor may be a beneficiary and inherit something under the Will and very often a family member may be appointed.
The executor should not act as a witness to the signature on the Will.
Any number of executors may be named but two is considered practical. If one of the executors is unavailable or decides that they do not wish to act for any reason the other executor may step in. They may be appointed to work on their own or together with other executors.
Changing the executor of a Will in Scotland
You may not want to agree to be named in someone’s Will; this is your entitlement and you can simply say no. Or perhaps may have agreed to be an executor some time ago but no longer feel able to take up the duties.
Changing an executor of a Will after a death in Scotland is possible. If there is another executor named in the Will you should let the other parties know, sign a formal resignation and step down. If there is no other executor named in the Will one would have to be appointed before your resignation.
Challenging an executor of a Will in Scotland
As executor you are the decision maker in the administration of the estate. You can decide whether and to what extent the beneficiaries are kept informed of progress in the winding up.
The beneficiaries or creditors may challenge an executor of a Will in Scotland and ultimately you may be held personally liable for any errors made or for mismanagement of the estate.
It is also possible that a Will may be challenged, if there is doubt as to its validity. This may be either in terms of the content of the Will itself or because of the circumstances surrounding its signing.
An executry solicitor will be able to assist you to deal with any challenges and this is a good reason for seeking professional advice from a specialist solicitor. Kay at Quill Legal is ready to help you. Please call her on 0131 564 1044 for a no obligation preliminary discussion. Or email Kay at : firstname.lastname@example.org
In general terms, what does an executor of a Will do in Scotland?
The executor of a Will’s responsibilities in Scotland depend on the size of the estate and the contents of the deceased person’s Will. The role of the Will appointed executor in Scotland is exactly the same as the role of an executor appointed by the court.
- Executors are responsible for investigating the extent of the deceased person’s possessions and funds.
- If required executors must apply to the court for confirmation or probate, as it is called in England.
- After confirmation is obtained executors should retrieve all the estate funds and settle any liabilities, including tax.
- Executors should distribute any assets to those entitled and finalise the Executry account.
The duties of an executor in Scotland
After the death
An executor may be asked to register the death, to discover if there is a Will and to arrange the funeral.
Gather all relevant paperwork
Executors will generally gather together all relevant paperwork and initiate enquiries with utilities suppliers and other services.
Apply for confirmation
If confirmation is required to obtain authority to withdraw funds or to transfer title to property an executor will have to apply to the Sheriff Court with an inventory of the possessions and property owned by the deceased. Applying for confirmation in Scotland is the equivalent of applying for probate in England and Wales. The items listed require to have an accurate value set against them and would include art, antiques and jewellery. Executors may wish to get property valued by an estate agent or a surveyor.
Submit forms C1 and C5
Forms C1 and C5 together with the Will if there is one have to be submitted together to the Sheriff Court. Executors may attend to this themselves but may otherwise choose to consult a solicitor for assistance, particularly where there is a liability for inheritance tax in which case a submission requires to be made to HM Revenue and Customs. Arrangements have to be made to pay the tax due before confirmation will be issued by the court. For small estates, with a value of up to £36,000, free assistance is available for executors from the local Sheriff Court.
Grant of Confirmation
When confirmation is granted, certificates will be issued for each item on the inventory and the executor may proceed to gather in the estate, to settle any outstanding debts, legal rights claims and legacies and then to distribute the balance of the funds to those entitled. Children and the spouse of the deceased person may assert a claim to legal rights from the estate; to ensure that this aspect is dealt with correctly it would be prudent to consult a specialist solicitor.
Keep clear records
Executors are required to keep clear records throughout the period of administration.
Do you have any questions or need help?
Quill Legal would be very happy to answer any queries you may have and to assist you with any work which you wish to instruct with regard to the Executry process.
Telephone: 0131 564 1044
If you have been appointed as an executor of a Will in Scotland,