The role of the Executor

Angus discusses the role and responsibilities of the executor.

An executor is a person who is tasked with dealing with the finances and assets of the deceased as stated in their Will and in accordance with Scots law.  The executor may be appointed by the deceased in the Will or appointed by the Sheriff in an intestate Estate (if there is no Will).

There are many responsibilities associated with being the executor, which can include:

• organising the funeral,
• valuing the Estate, including any heritable property,
• paying any inheritance tax to HM Revenue and Customs (HMRC),
• applying for Confirmation,
• paying debts and distributing to beneficiaries,
• other acts on behalf of the Estate, such as suing debtors of the deceased, selling assets, and keeping Estate accounts.

What is Confirmation and when is it needed?

An appointed executor will need to obtain a ‘grant of confirmation’, which is the Scottish equivalent of ‘probate’ in England & Wales. Confirmation is the authority granted by the relevant Scottish Sheriff Court allowing the executor to uplift the deceased’s assets, and administer and distribute these assets in accordance with the Will, or the law of intestacy. However, there are several steps involved in obtaining Confirmation.

As part of the Confirmation application, the executor must prepare a detailed inventory of the Estate at the date of death. Each item, including heritable properties, investments, and bank accounts, must be given a value. In many cases, it may be necessary to obtain professional valuations (e.g. the house and personal contents). The right of administration does not exist before Confirmation, and the executor’s authority only extends to the inventoried assets.

The executor must also deal with the inheritance tax via HMRC by assessing the Estate, completing the appropriate forms, and paying any inheritance tax due. This part of the executor’s role may extend the process, depending on the nature of the Estate and its complexity. Where it is necessary to submit an inheritance tax return to HMRC, they must approve that and provide a letter of authority before the executor can apply for Confirmation. From our experience, it is common for HMRC to take up to three months to process an inheritance tax return before they issue the authorization letter.

Confirmation is almost always needed when the deceased leaves assets behind. However, there are some exceptions, such as:

• the Estate is of a lower value (below £36,000 is known as a ‘small estate’, although access without Confirmation will depend on the institution holding the funds); or
• the assets of the deceased were owned jointly with someone else, and everything passes automatically to the surviving joint owner (survivorship).

How can we assist?

The responsibilities of an executor can be complex and laborious. This is further hindered by factors such as the existence of challenges to a Will, legal rights claims, the number and value of the assets, the nature of the beneficiaries and if the Estate is intestate.

If you are an executor or looking for advice on executory administration, please get in touch with our executry team at Middleton Ross.