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Being asked to be an Executor: Understanding the risks

Have you ever been asked to consider acting as someone's Executor? Did you ever wonder what the role involves and what legal responsibilities you will have? It was recently reported (available here) that a significant number of people could have agreed to become the Executor of an estate without fully understanding the nature of the role. Executors Insurance conducted an investigation that found that a noticeable percentage of people found the role of Executor to be a challenging one, and the task of understanding and honouring the responsibilities that they owed to be difficult.

At Wilson and Fish, we often work with clients who have been asked to act as someone's Executor, but are unfamiliar with the law and what the role requires of them. If you have been approached about acting as the Executor for an estate, you should take some time to investigate what you will be expected to do if you accept the role.

What is there to worry about in becoming an Executor?

Many people believe that there is little to no reason to be concerned about taking up the position of an Executor. Many attach more importance to their being approached to take on the role in the first place, rather than concerning themselves with the legal details. The reality is quite the opposite. While it is true that it is an honour to be asked to act as someone's Executor, normally being an indication that you are deemed to be a trustworthy and honourable person who is though capable of administering an estate according to the terms of a Will, it is vital to understand that the role of Executor is one that is governed by strict legal rules. A failure to follow the rules and perform your duties as an Executor to the required standard can have very real and significant consequences.

What exactly are the duties of an Executor?

Executors are people identified by someone in their Will to be their representative and organise their estate when they die. It may sound quite simple, but in fact involves a great deal of work:

  • An Executor will need to collate all of the information that exists in relation to an estate, and approach the courts in order to be given permission to administer the estate according to the deceased's Will. In Scotland, this is known as securing ‘Confirmation’;
  • They will also need to immerse themselves in the detail of the deceased’s life, becoming involved in dealing with bank accounts, investments, and other personal assets. This tends to involve working with banks and other organisations, notifying them of your role and working with them to ensure that, as part of the deceased's estate, the assets they hold on behalf of the deceased are distributed according to the deceased’s Will;
  • Given that an Executor is the only person identified to deal with the deceased's estate, they will also need to honour any existing obligations that are still outstanding. In other words, an Executor will need to arrange for any debts to be paid and discharged before they can begin to arrange for beneficiaries under a Will to receive their inheritance. This will also involve dealing with any tax liability that the estate is due to discharge, particularly Inheritance Tax; and,
  • They will also need to deal with the challenges of presenting beneficiaries with their inheritance. While this tends to be uncomplicated, issues can arise where beneficiaries are disappointed with their inheritance and may require a degree of guidance in understanding why their inheritance is not what they had expected.

Taken together, the responsibilities of an Executor are not insignificant. Executors can expect to become intimately involved in the deceased's affairs, and must be prepared to be meticulous in their administration of their estate.

What happens if an Executor makes a mistake in performing their duties?

This question is very rarely asked. Individuals that have been asked to become the Executor of someone's estate must understand that, given that their role is one regulated by legal rules, there are consequences for any error that they make in performing their role. Ultimately, as the only party directly involved in controlling the deceased's estate, an Executor can be held personally liable for any problems in dealing with an estate. There are a variety of instances where this can happen:

  • An executor fails to adequately police the estates finances, meaning that expenses which are normally payable by the estate e.g. funeral costs, are not accounted for.
  • In organising an estate, an Executor fails to note an outstanding debt that is owed by the estate and subsequently allocates funds that would have been used to settle it as part of someone's inheritance.
  • In attempting to distribute inheritance to beneficiaries, an Executor makes the wrong allocation and fails to recoup the monies without causing detriment to other beneficiaries.

There are in fact multiple scenarios where an Executor can be held personally liable for mistakes in administering an estate. It is for this reason that it is important to consider whether or not you are prepared for the role, and that you are fully aware of the responsibilities you owe to the estate and to the beneficiaries entitled to benefit from it.

Contact Wilson and Fish today.

At Wilson and Fish, clients who are wary of agreeing to act as the Executor to a family member or friend’s estate regularly contact us. They often have questions about what their role involves, and are interested in receiving support for if and when they agree to accept the position. Our Executry team are experts on the law applicable to Wills and the Executry process in Scotland, and place importance on delivering pragmatic, effective legal advice to help people more fully understand the nature of the role of Executor. To find out more about the role, contact us today.

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