Have you recently been appointed as an Executor? Are you aware of what the role entails and its incumbent legal responsibilities?
What is an Executor?
An Executor is a personal representative, usually appointed under a Will, who is responsible for dealing with the assets (e.g. the house, car, money, shares/investments) of a person who has died. The Executor must distribute the estate assets in accordance with the terms of the Will, if there is one, of the person who has died. There may be more than one Executor.
What does the role entail?
The Executor’s role may include involvement in the following aspects:
The Executor must check the terms of the Will, identify beneficiaries, and identify all of the estate assets both in the UK and abroad. The Executor must obtain values of each asset as at the date of death and prepare a list (called an “Inventory”) of those assets. The Executor is also responsible for settling any debts which fall due by the estate but will not be personally liable to pay these debts from their own pocket. The Executor will, however, be personally liable for any such debts if they finalise the estate within 6-months of the date of death (this is called the “6-month rule”).
Inheritance Tax (“IHT”)
If the estate is liable to pay IHT to HM Revenue & Customs (“HMRC”), the Executor must send the necessary paperwork to HMRC and make payment of any IHT due as soon as practically possible to avoid paying interest. Interest becomes payable by the end of the sixth month after the person died.
Depending on the size of the estate, the Executor may need to apply for Confirmation (the Scottish equivalent of “Probate”). An application is submitted to the relevant Sheriff Court detailing the estate assets. It is critical that the information submitted is correct, to the best of an Executor’s knowledge, as the Executor has a duty to disclose all information regarding the estate and any liabilities/debts due. If the Executor fails to make full enquiries, they may be liable to penalties or prosecution for failing to do so.
Ingather, account and distribute
Once Confirmation is granted, the Executor has legal authority to ingather the funds due to the estate. Any outstanding debts and estate expenses are settled and legacies paid. The Executor must then distribute the balance of the estate per the terms of the Will, if there is one. The Executor must also prepare a final Accounting, detailing all of their intromissions with the funds of the estate.
1.Should I accept my appointment as Executor?
It is important to be mindful that being an Executor may commit you to spending time identifying assets, locating and liaising with beneficiaries and communicating with solicitors if appointed to act on your behalf.
2.Why should I appoint a solicitor?
It is an upsetting time when a loved one passes away. Your solicitor can remove the additional stress and upset of dealing with the administration of an estate and manage this on your behalf.
3.There isn’t a Will. What do I do?
This is called dying “intestate” and an Executor(s) will need to be appointed by the Sheriff Court. In the absence of a Will, there are provisions contained in the law (called the “intestacy rules”) which determine to whom the estate should be distributed.
If you have been appointed as an Executor, or think you may have to deal with an estate where there is no Will, and would like to discuss matters further, please do not hesitate to contact a member our firm’s experienced team of estate solicitors who would be pleased to guide you through matters.
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