What does an executor do?
When someone dies and leaves behind property and assets, these need to be realised. Once realised, they need to be distributed to beneficiaries of the deceased. The person responsible for dealing with all of this is called an executor.
How is an executor appointed?
An executor will be appointed in a Will, if the deceased made a Will before his death. If the deceased did not draw up a Will, a petition needs to be made to the court to appoint an executor.
When an executor is named in a Will, they can immediately start dealing with the estate of the deceased. This means there is no delay in the appointment. If there is no Will, that means the estate is intestate. When that happens, the court needs to be asked to appoint an executor. There are strict rules to follow to appoint an executor where there is no Will. These are dictated by familial relationships to the deceased. For instance, if the deceased was married or in a civil partnership, their surviving spouse or partner is the obvious choice as executor, providing they have capacity. Failing that, we then need to look at children of the deceased or if there are no children, parents and siblings, the relationship then widens until a suitable person is found to appoint as executor.
It is also important to note that where there is no Will, an insurance policy called a Bond of Caution will be needed before the estate can be dealt with.
What are the executor’s responsibilities?
Once appointed, the executor is responsible for dealing with the estate of the deceased. This means they must establish the extent of the deceased’s property and estate. They also need to establish the extent of any debts the deceased had at the date of their death.
This means the executor must communicate with a number of organisations and ask them to provide the necessary information and this can take some time to manage and monitor.
The executor must also ensure that the true valuation of the assets is made. That means arranging professional valuation for any property, jewellery and personal possessions and shares to name but a few.
Once the value of the assets and liabilities of the estate are known, these have to be placed in a list called an Inventory of Estate. A check must then be carried out to determine if Inheritance Tax is due. If it is, this needs to be paid before going any further. Even if there is no Inheritance Tax due, this has to be confirmed to HMRC.
Once any Inheritance Tax question has been dealt with, the Inventory of Estate must then be presented to the court for examination. If found to be in order, the court will issue Confirmation. Confirmation entitles the executor to realise the estate.
The next step is for the executor to realise all the assets of the estate and to pay off the debts and liabilities as well as the expenses of dealing with the estate. Then the executor needs to pay out any legacies or bequests made in the Will, if there is one and distribute the residue of the estate as directed in the Will.
If there is no Will, the executor need to ensure any Prior Rights and Legal Rights are met.
Finally, an account needs to be prepared setting out the entire extent of the estate realised and who it was distributed to.
Does the executor need to appoint a solicitor?
As you will perhaps have realised by now, an executor has a very high level of responsibility when dealing with an estate. The estate does not need to be especially large for there to be problems to resolve. Also, if there are questions of Prior and Legal Rights to be resolved, the executor may need legal advice on how to properly address these.
Our experienced executry and estates solicitors advise and help executors to deal with estates every day from our offices in North Berwick and Dunbar. We are happy to answer your questions and provide assistance as and when required. If you would like to discuss any executry matter with us or seek guidance if you run into a problem, please get in touch.