What are an executor's responsibilities?

When a person dies, someone must look after their estate. The estate consists of their property, assets and investments less their debts. The person who deals with these matters is called an executor.  An executor is responsible for dealing with the estate of the deceased. Before accepting the appointment, the proposed executor should familiarise themselves with an executor’s responsibilities.

How is an executor appointed?

There are two ways in which an executor can be appointed. If the deceased made a Will, the executor will be named in the Will. If the deceased died intestate, someone would need to apply to the courts to be appointed. A deceased’s estate is intestate when there is no Will.

Where there is a Will

If the deceased made a Will, they will have appointed an executor in their Will. The person named in the Will becomes the executor of the estate.

Where there is no Will

Where the deceased did not make a Will, an executor needs to be appointed by the court. The executor can be:

• The next of kin
• Anyone entitled to inherit all or part of the estate
• Creditors
• Anyone entitled to a legacy 
• The procurator fiscal

To be appointed, the person seeking to be executor must petition the court to be appointed. That person seeking appointment should not deal with any aspect of the estate before the appointment by the court.

Identifying and tracing beneficiaries

By whichever means the executor is appointed, it is important that they properly identify who is to inherit what from the estate.

Where there is a Will, it will clearly set out who should inherit what parts of the property, assets and investments of the deceased.

Where there is no Will, the law of succession dictates who should share in the estate.

In either case, the executor will need to address Prior Rights in the case of an intestate estate and Legal Rights whether there is a Will or not. As the deceased’s children are entitled to Legal Rights, the executor must try to locate the children who are entitled to inherit through Legal Rights.

Ensuring Prior and Legal Rights are addressed

Prior Rights only apply when there is no Will. If there is a Will, the surviving spouse or civil partner is not entitled to Prior Rights.

Where there is no Will, the Prior Rights are made up of:

• The family home (up to the value of £473.000);
• The contents and furniture in the family home (up to the value of £29,000;
• £89,000 in cash or cash equivalents if there are no children or £50,000 if there are children.

It is also important to note that where the Prior Rights exhaust the estate, there will be nothing available to meet Legal Rights.

Legal Rights are an entitlement to share in the moveable estate of the deceased whether there is a Will or not. They are made up as follows:

• The surviving spouse or civil partner is entitled to one half of the moveable estate where there are no children. Where there are children, the entitlement is to one third of the moveable estate;
• Where there is no spouse or civil partner, the children of the deceased are entitled to one half of the moveable estate. Where there is a spouse or civil partner, the children are entitled to a one third share in the moveable estate. In either case, the share allocated to them must be shared equally amongst them.

Where there is a Will, the spouse or civil partner or children can elect to receive what has been left to them in the Will or claim Legal Rights. They cannot have both.

Part of the executor’s responsibilities is to ensure Legal Rights are met. Legal Rights should be considered a debt of the estate and paid out before any bequests or legacies are met.

Determining the extent of the estate

Before there can be any distribution, the executor must determine the value of the estate. This is made up of the entire property, assets and investments less the debts of the deceased.

The executor must prepare an inventory of the estate, itemising each item of estate and its value at the date of death.

In addition, the executor must investigate any gifts made by the deceased prior to their death and whether they qualify for any Inheritance Tax relief.

Dealing with the formalities of Confirmation

Once the inventory of estate has been completed, the executor must lodge it with the sheriff clerk. Any Inheritance Tax due by the estate must be paid before Confirmation can be granted.

Where the deceased died intestate, a bond of caution is likely to be needed. This is a type of insurance policy for the benefit of the beneficiaries should the executor make a mistake in the distribution of the estate or, in some unfortunate instances, misappropriates the estate’s funds.

Distributing the estate

Once Confirmation has been granted, the executor must ingather all the property, assets and investments owned by the deceased or arrange to transfer these to beneficiaries, as appropriate.

Any debts of the estate and Legal Rights claims must be settled. Thereafter, the executor must distribute the estate either in accordance with the Will or under the law of succession in Scotland.

Experienced Estates Solicitors in North Berwick and Dunbar, East Lothian

We have very experienced solicitors who deal with all aspects of estates and advising executors about their responsibilities. We deal with clients in North Berwick and Dunbar and other locations throughout East Lothian, Edinburgh and across Scotland.

If you would like to discuss how we can help you deal with an estate, please get in touch with us today.