Acting as an Executor in Scotland: What You Need to Know

Being appointed as an executor is an important responsibility. Whether you have been named in a Will or have been appointed by the Court, you will have specific legal duties when administering the estate. If the estate is administered incorrectly, this can potentially lead to personal liability.

You may choose to decline the appointment, but this will usually only be appropriate where another suitable individual is willing and able to act. If you do accept the role, you will be responsible for managing the estate from start to finish. This will include valuing and gathering all estate assets, dealing with payment of any debts and expenses and distribution the estate to the relevant beneficiaries.

Should you Instruct a Solicitor?

When administering an estate, an executor generally as two options:

1. Instruct a solicitor: This can be a practical and reassuring option, particularly at a difficult time. A solicitor can deal with the day-to-day administration, communicate with institutions, prepare the necessary paperwork, and help ensure the estate is handled correctly.
2. Deal with the estate yourself: While possible, this can be complex and time-consuming. Executors may need to correspond repeatedly with banks, financial institutions, government bodies and the courts, particularly when applying for Confirmation.

Notifying Organisations After Death

Once the death has been registered, the Registrar normally provides a code for access to the “Tell Us Once” service. This allows you to notify the certain government departments and organisations, such as HMRC, the Passport office, DVLA and the Department for Work and Pensions, using one service.

Preparing an Inventory of the Estate

An executor must identify, account for, and gather in all the estate assets. This usually involves preparing a detailed inventory of everything owned by the deceased at the state of death. This includes, but is not limited to:-

• Any property
• Vehicles
• Bank accounts, including current accounts, savings accounts and ISAs
• Cash
• Bonds, stocks and shares.

When contacting banks and other institutions, you will normally be asked to follow their bereavement process. This may include an original death certificate, proof of your identity, evidence that you are entitled to act as an executor, such as the Will, and any additional forms or documents requested by the institution. This is where a solicitor can be helpful as they take care of the burden of the paperwork.

Applying for Confirmation

Once the inventory has been finalised, an application for Confirmation can be prepared an submitted to the court. Confirmation is often required before estate funds can be released. If the estate includes property, Confirmation will also be required before a property can be sold or transferred.

Paying Debts and Liabilities

After property has been sold or transferred and funds have been gathered from banks or other financial institutions, the executor must arrange of the estate’s debts and liabilities. These may include funeral expenses, credit cards, loans, utility bills, death certificates, court dues for Confirmation and other outstanding costs.

Preparing Estate Accounts

Once all debts and liabilities have been settled, an estate account should be prepared. This shows the full value of the estate, the funds ingathered the expenses paid and the balance available for distribution to beneficiaries. Residuary beneficiaries are entitled to a copy of this and Executors must undertake a full accounting.

Distributing the Estate

If there is a Will, the estate should be distributed in accordance with its terms. However, executors should also be mindful of Legal Rights in Scotland. A surviving spouse, civil partner and children, including adopted children, may have a claim. This is to a portion of a deceased’s net moveable estate. Executors should ensure that those entitled to claim Legal Rights are notified before the estate is distributed.

If an executor distributes the estate without taking proper steps to identify and notify those with potential claims, they may become personally liable.

If there is no Will, the estate should be distributed in accordance with its terms. However, executors should also be mindful of Legal Rights in Scotland. A surviving spouse, civil partner and children, including adopted children, may have a claim. This is to portion of a deceased’s net moveable estate. Executors should ensure that those entitled to claim Legal Rights are notified before the estate is distributed.

If an executor distributes the estate without taking proper steps to identify and notify those with potential claims, they may become personally liable.

If there is no Will, the estate must be distributed in accordance with the intestacy rules in Scotland. Executors can be held personally liable if the estate is distributed incorrectly.

Final Thoughts

Acting as an executor can be a significant responsibility, particularly at an already difficult time. Taking early advice can help ensure the estate is administered properly, reduce the risk of personal liability, and provide reassurance throughout the process.