Being an executor of someone's estate is no easy task and can often lead to difficulties among surviving family members. It was recently reported (available here) that the wife of famous Indian actor, Bobby Deoul, Tania, is seeking the removal of the executor of her late father’s will, Ravi Kiran Aggarwal, from his position. This dispute is still ongoing but has centred around allegations from both parties regarding how the estate is to be utilised. This kind of argument is all too common in estate matters, and is a reminder as to how important it is to appoint an executor that is capable of doing their job well and appreciates the important position that they hold.
At Wilson and Fish, we regularly advise clients on all aspects of family planning, including the drafting of a will and appointment of an executor. In this blog post, we highlight some of the key considerations that you should have in mind when appointing an executor.
Why is it so important to choose an executor?
There is often a great deal of misunderstanding regarding the importance of appointing an executor. An executor is someone that you have chosen to have responsibility for administering the terms of your will in the distribution of your estate when you pass away. The role of executor is one that carries a specific set of responsibilities, any failure to discharge which could result in severe legal sanctions for the individual concerned.
What will my executor do?
As mentioned above, your executor is someone that you have chosen to carry out the instructions that you leave behind in your will. This person should be someone that you have complete trust in and can be anyone of your choosing. In taking on the role of the executor of your estate, your executor will be in charge of a great many things, including:
- Ingathering all of the relevant information that pertains to your estate when you pass away and presenting this to the court with a view to securing its permission (known as ‘confirmation’) to distribute your property amongst your surviving family etc.;
- Familiarising themselves with every aspect of your previous life, including handling your personal assets and becoming privy to your personal information regarding e.g. finances, history, investments etc. They will then need to approach organisations and individuals that you may have had some financial dealings with in the past with a view to paying off outstanding debts and ingathering monies due to the estate. They will also be charged with ensuring that all tax liabilities you had previously owed are discharged before the terms of your will are administered; and
- Coming into contact with your surviving relatives and explaining to them what your last wishes were, and why they have/ have not inherited under the terms of your will.
Having highlighted the different aspects to the role of Executor, you will now appreciate why it is so important to one (i) select an Executor in the first place; and (ii) be very careful in who you ask to take up the position. This inevitably leads to one very important question: who should you appoint as your Executor?
Who comes top of the list?
Your decision as to who becomes your executor is a deeply personal one and is yours alone, no one else can do it for you. Legally you are completely free to ask whomsoever you want to take up the position, but you should understand that you can only ask someone to take up the role – no one can be forced. It is advisable that you discuss it with the individual that you believe would suit the post well, and explain your mindset and why you are asking them to act as your Executor. Furthermore, it is also wise, working in partnership with an experienced solicitor, to speak with your intended Executor and ensure that they understand the distinct responsibilities that an Executor has, principally that they alone may be held personally liable for any mistakes or inaccuracies that result from their distribution of your estate.
The organisation of your estate is bound to be a complex process – the executry process often is, at least when it is encountered for the first time. This is why there is a probability that a mistake may be made by your executor, and they may not appreciate the legal and financial consequences that follow.
The nature of the role of executor and the legal duties the office carries are prime reasons for choosing someone that is capable of understanding the process involved, and preferably, is already familiar with them. In practice it is not uncommon for a solicitor to take up the office of Executor of an estate, largely owing to their familiarity with your estate and of the relevant legal processes involved.
Choosing an Executor is no easy task and there is a lot to be considered before the decision is taken. The reality is that few people understand the exacting nature of the role of Executor, and often identify someone to take up the office that is equally unaware of their responsibilities. This is why it is vital to take detailed legal advice on the laws involved and what this will mean for the individual you select for the position.
Private client lawyers in Glasgow
Wilson and Fish is a leading private client law firm based in Glasgow. We have a busy practice that meets the needs of our clients, delivering effective and pragmatic legal advice.
Our solicitors are regularly sought to assist in drafting wills and the executry process. Indeed, we have many years of experience of acting as the executor for many of our clients’ estates, and are very familiar with the relevant rules and procedures involved. If you would like to speak to us about creating a will or appointing an executor, contact us today. We understand that you may be anxious about the process and may simply need some guidance on how best to realise your intentions – we can help you do that.