An Executor is someone appointed under a Will (or by the Court if the deceased died without leaving a Will – called dying “intestate”) to ensure that the deceased’s estate is properly wound up.
The role comes with a number of legal responsibilities and the Executor must ensure that they always act in the best interests of the estate. The main responsibilities include:
1. Carrying out initial tasks such as registering the death, completing the ‘Tell us Once’ exercise with the registrar, arranging the funeral and, if assistance is likely to be required, liaising with a solicitor for estate administration purposes.
2. Establishing the value of the deceased’s estate. The Executor must obtain values of all of the assets the deceased held, both in the UK and abroad, as at the date of death. This includes any heritable property (i.e. the deceased’s home), bank accounts, shares, investments etc. as it may be necessary for them to obtain Confirmation (the Scottish equivalent of “Probate”) in the estate. In addition to this, the Executor must establish the position in terms of any debts owed by the deceased at the time of their death.
3. Paying Inheritance Tax (“IHT”). If the value of the estate is such that IHT is due to be paid to HM Revenue & Customs (“HMRC”) it is the Executor’s responsibility, amongst other things, to ensure that the necessary paperwork is sent to HMRC along with payment of the IHT. In order to avoid interest being charged on IHT, the Executor must ensure that payment is made to HMRC within 6 months from the end of the month in which the deceased died.
4. Applying for Confirmation, if required. This involves the Executor completing the necessary paperwork and making an application to the Sheriff Court so that Confirmation may be granted. The application is essentially a snapshot of the deceased’s estate as at the date of their death. If an estate is liable to pay IHT, this must be paid before the application for Confirmation may be made. If, however, the estate may be classed as a “small” estate for which Confirmation is still required, the Sheriff Clerk may be able to provide assistance to the Executor with the application. If the deceased did not leave a Will, and Confirmation is required, it may be necessary for the Executor to obtain a special insurance bond (called a “Bond of Caution”) before they can apply for Confirmation.
5. Ingathering and distributing the deceased’s estate. Once Confirmation has been obtained, the Executor may then ingather funds that are due to the estate, settle any debts and expenses (including, if appropriate, any Legal Rights – for more information on Legal Rights, please refer to Megan Hainey’s article “The intricacies of Legal Rights”), and pay legacies (if any). The estate can then be distributed per the terms of the Will or the rules of intestacy if there is no Will. The Executor must also be mindful of the “6 month” rule which means, essentially, that they should not distribute the estate before a period of 6 months has passed from the date of death because that is the timeframe within which any person who is owed money may intimate their claim against the estate. If the Executor distributes the estate within this timeframe, they will find themselves personally liable for any such debts which may arise.
If you need any advice about executry administration, get in touch with the Blackadders’ Private Client Teams working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Zoe Milne, Trainee Paralegal
Private Client, Executries
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