The person who has the responsibility for carrying out a deceased’s wishes set down in a will is known as an ‘executor’. They have the heavy but necessary legal duty of carefully organising all of the deceased’s affairs and honouring the terms of the will.
Executry Solicitors Ayr, Troon, Kilmarnock, Irvine and Glasgow
If you are drafting a will, you have complete freedom to decide whom you wish to be your executor. You may choose a family member, a friend or even an organisation, e.g. a law firm or a bank. But is vital, regardless as to whom you choose, that you speak with them about the nature of their responsibilities, and establish whether or not they are prepared to accept the role.
The team at McLennan Adam Davis Solicitors are often asked to provide advice on the role that executors must perform. If you would like to know more about the requirements of an executor, or to find out more about who can perform the role, speak to our team today. We will ensure that you are fully advised on what is involved.
Executry Estate Guidelines
This guideline provides a basic outline on the legal procedures involved to enable the Estate of a deceased party to be completed.
A deceased’s Estate can either be Testate, i.e. whereby the deceased left a will, or Intestate, i.e. where no will was left by the deceased. The procedures differ accordingly.
Where an Estate is Testate the deceased will have left a will appointing Executors who are the legal representatives of the deceased and it is the Executors who are our clients. They are responsible for the finalising of the deceased’s Estate and ensuring that the terms of his or her will are complied with.
The first stage is to investigate the Estate to confirm, as at date of death, the extent of the deceased’s Estate. All asset holders require to be written to together with identification of any debts due as at date of death. These enquiries are fundamental to the Estate procedure. It can take some time to ingather all of this information but when received this will allow the inventory of the Estate to be prepared and available for signature by an Executor. The inventory would then be lodged with the relevant Sheriff Court who will then issue a document known as Confirmation.
Confirmation is, in essence, the mainstay of the whole administration of the Estate and provides a legal authority in order for the asset holders to release funds to us for credit to the Estate and allow us to settle debts and deal with the administration of the Estate in terms of the deceased’s will. Confirmation is exhibited to all of the asset holders who upon receipt of same will pay the proceeds for credit to the Estate. Thereafter the Estate, when all liabilities have been settled, can be distributed in terms of the deceased’s will.
The procedure differs however if a deceased has died Intestate, i.e. without leaving a will. The procedure with an Intestate Estate is that we require to appoint through the Sheriff Court an Executor to administer the Estate. The appointment of an Executor who may be appointed in that capacity is determined within the Succession (Scotland) Act 1964. The appropriate petition is prepared to appoint the Executor and lodged with the Sheriff Court who will grant same.
Thereafter the procedure is very similar to that of a Testate Estate in that the usual investigation and obtaining of details of assets and liabilities to complete an inventory are dealt with on the same basis.
However, with an Intestate Estate it may be necessary to obtain a Bond of Caution (which will be required in the majority of cases but not all cases) prior to Confirmation being obtained to the Estate. In essence, the Bond of Caution is simply an insurance document which protects the Executors in relation to the administration of the deceased’s estate and settlement with the penultimate beneficiaries. It is a necessary requirement prior to Confirmation being obtained.
When the Bond of Caution has been granted everything is then lodged with the Court in order for Confirmation to be obtained and thereafter when granted the procedure is identical to that of a Testate Estate. However upon the conclusion of the Estate and when we are ready to finalise same it cannot obviously be distributed according to the terms of the deceased’s will as if they have died Intestate they have left no will, so that distribution must be carried out with reference to the Intestate laws of Scotland which are contained within the Succession (Scotland) Act 1964 and subsequent amendments thereon.
We will endeavour to complete and finalise matters of the Estate Administration as expediously as we can. The guidelines from the Law Society stipulate that Executry Estates should not be finalised for six months from date of death as creditors have that time period in which to make any claim against the Estate for any debts or outstanding accounts due to them. At McLennan Adam Davis we follow the guidelines set down by the Law Society and will not distribute Estates, either Testate or Intestate, until this six month period from date of death has elapsed. It should be noted however that if an Estate is more complex, i.e. a larger Estate or an Estate with Inheritance Tax issues etc, then a likely timescale is very difficult to determine. Some Estates can take up to two years to complete and finalise.
Inheritance Tax can also be an issue with regard to Executry Estates and we draw your attention to this point. Inheritance Tax is payable in an Executry Estate if the Estate exceeds the nil rate band threshold. It is often a complicated calculation which the connotations of are too lengthy and numerous to detail in this guideline. Suffice to say however that at McLennan Adam Davis we arrange for the Inheritance Tax to be assessed in any event and the Tax will require to be paid six months from the date of death or unfortunately interest will start accruing thereon.
We trust this basic guideline clarifies the procedures involved with an Executry Estate, but if you require any further clarification then please do not hesitate to contact us.
McLennan Adam Davis accept no responsibility for any loss which may arise from reliance upon the information provided within our guidance leaflets and you should all obtain legal advice if any of the issues are of a concern to you.
Contact our Private Client Solicitors Ayr, Troon, Kilmarnock, Irvine and Glasgow
McLennan Adam Davis Solicitors is a firm of dedicated legal advisors working throughout Ayrshire, dedicated to providing clear and comprehensive legal advice tailored to our clients’ individual circumstances and needs. We are very proud to serve our clients, providing access to specialists across all areas of the law in their local area. If you want to speak to a compassionate and understanding team of lawyers, who offer clear and affordable legal advice on any aspect of the law governing wills, executries or powers of attorney, please contact our team.
