Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
It is a privilege to be appointed executor of a loved one’s Will. It is an indication of the trust they have in you to deal with their affairs following their death. However, being an executor can be challenging. Sometimes, an executor may not even know they have been appointed and only find out when the deceased’s Will is found. Where there is no Will, a family member is normally appointed by the court to deal with the estate. However, for most people appointed as an executor in a Will, their awareness of the appointment comes many years before their loved one dies.
If you know you are to be an executor of someone’s estate, it is helpful to establish where all the important personal and financial papers, including the Will, are stored. If you know that, it means you can act quickly following the person’s death to gather the information necessary to apply for the Grant of Confirmation (the Scottish equivalent of Probate).
You should find out from the testator (the person making the Will) if there are any particular items, such as jewellery or other items of a personal nature, that they would like given to specific friends or family members. Personal possessions can often carry much more sentimental value than financial value. Understanding the wishes of the testator helps avoid conflict after their death. It can help greatly if these wishes are written down.
You may also wish to ask if they have any specific instructions for their funeral. For example, is there any particular music they would like played at their funeral service or would they like any form of reception after the service?
It is also useful to discuss how they would like to deal with their digital assets after their death, most of which will need passwords to access.
Whilst these are just some of the things you might discuss with the testator, the executor’s real obligations and responsibilities come into play after the testator has died.
An executor has the authority to deal with the deceased’s estate. This applies whether they are appointed by a Will or by the court. There are a number of legal and practical steps to be undertaken when dealing with an estate.
The executor may require to register the death and arrange the funeral. The executor is responsible for looking after the assets of an estate until they are sold or transferred to the beneficiaries. If the deceased owned a property, they need to contact the insurer to make sure it is adequately insured, secure and being checked regularly. They also need to liaise with the various companies regarding ongoing bills for the property, such as gas and electricity.
An executor must then establish the extent of the deceased’s estate. This will include all property and other assets the deceased owned and any debts they owed. The next step is to prepare an inventory of the estate, which forms the basis of the application for Confirmation. The executor also needs to determine whether the estate requires to be reported to HMRC and if any Inheritance Tax (IHT) needs to be paid. If so, this must be paid within 6 months and before the application for Confirmation is made. Once the extent of the estate has been established and any IHT paid, the inventory of estate and other papers are submitted to the Sheriff Court in the area the deceased lived prior to their death.
If the deceased died without a Will a type of insurance policy, known as a Bond of Caution, may be required when making the application to court for Confirmation. This is to protect the interests of the beneficiaries in the estate.
The Sheriff Clerk will examine the inventory and any supporting documents and, if all is in order, will issue the Grant of Confirmation. Confirmation gives the executors the legal authority to ingather the estate, pay the funeral expenses and liabilities and distribute the residue to the beneficiaries.
Consideration should also be given to the Legal Rights of the spouse or civil partner and any children of the deceased and, if the deceased did not leave a Will, the Prior Rights of the spouse or civil partner. These can be complex and we would always recommend you seek legal advice in relation to these.
Many executors choose to instruct a solicitor to deal with the administration of the estate on their behalf. It can be helpful to have an initial meeting with a solicitor to discuss how best to deal with the management of the estate.
The administration of a straightforward estate can take many months. More complex estates can take much longer. It can involve considerable correspondence with financial organisations, pension providers, HMRC and the court. The solicitor can deal with these organisations on behalf of the executor. The forms to apply for Confirmation and report the estate to HMRC can be complex and they can also assist with these.
The solicitor can ingather the assets once Confirmation is granted and liaise with the beneficiaries to take their instructions in relation to the sale or transfer of the assets, whilst also managing their expectations in relation to timescales.
The solicitor can also deal with finalisation of the income tax position to date of death and deal with any income tax reporting for the executry administration period, which may include Capital Gains Tax (CGT) on the sale of assets. They can also prepare an executry account, copies of which are normally provided to beneficiaries at the end of the administration and once approved by the executor.
Jennifer Gray is a Senior Executry Paralegal and deals with all aspects of executry administration and related tax matters. If you have any questions about this article or the issues covered here, please complete our contact form or call us on 0131 225 1200.
At Murray Beith Murray, we're more than just lawyers - we're trusted advisors. We clearly outline the executry process, providing straightforward, practical advice and assistance. Our approach to client service is friendly and responsive, and we operate with the highest standards of integrity and professional expertise.
