I’ve been named executor in a will – what do I need to know? We outline the main duties.

Being an executor to a will can be daunting, but the team at Gibson Kerr in Scotland can help. Here Lindsay MacLean, Head of Personal Law, explains how it works in practice.

If you’ve been named executor of a loved one’s estate, you have been entrusted with a crucial role in carrying out their final wishes. This is a position of great responsibility, and you will likely be grieving their loss while also navigating a difficult legal and administrative process. At Gibson Kerr, we have helped many people through this, and we understand it can seem overwhelming. In this article, we are outlining the essential roles of an executor in Scotland.

Your main responsibility as an executor is to make sure the estate is handled following the instructions of the deceased in their will or the rules of intestacy if there is no will. Along the way, you will need to perform several main duties in line with Scottish law, these are:

Probate

The legal procedure that verifies an executor's capacity to manage an estate is known as confirmation in Scotland. The executor must apply for a grant of confirmation from the Sheriff Court, which involves providing a list of the deceased's assets, debts, and the will itself (or appointment as executor under the intestacy rules if there is no will). Because you will need meticulous record-keeping and legal knowledge, this step can be challenging for individuals.

Gathering and valuing assets

All of the deceased person's assets, including their property, bank accounts, investments, and personal belongings, must be identified and gathered. This involves determining the value of these assets as of the date of death, which can be a difficult task. You may need the help of experts like surveyors or accountants, and we can help arrange these.

Paying debts and taxes

As an executor, you must pay any unpaid debts and taxes owed by the deceased before giving the assets to beneficiaries. This may include communication with creditors, HM Revenue and Customs, and other government organisations. The order in which these are paid is important, and you will need to follow a specific hierarchy established by law. The executor doesn’t have to pay debts and taxes from their own funds if there isn’t enough in the estate.

Distributing assets

Once all debts and taxes have been settled, executors can distribute the remaining assets to the beneficiaries as specified in the will. You will need to make sure that this is done in line with the deceased's wishes in their will or following set intestacy rules, and may involve selling assets or transferring property titles.

Record-keeping

Executors must maintain records of all financial transactions related to the estate. These records may be audited, and executors can be held personally liable for any mishandling of the estate's finances.

Communication

It’s your responsibility as executor to keep the beneficiaries informed about their entitlement from the estate. This may include answering questions about the estate and resolving any issues or disagreements that may develop.

Legal obligations

As an executor, you’re legally obliged to act in the best interests of the estate and its beneficiaries. You will have a fiduciary duty, meaning you must prioritise the estate's interests over your own personal interests. If you don't, you risk legal repercussions.

Professional help

Many people who are appointed executors seek professional help, such as legal advice or financial expertise, to navigate the complex administrative and legal requirements of estate administration. For large or complicated estates, particularly where there is inheritance tax to pay, this is especially recommended.

Compensation

Executors are generally not entitled to be reimbursed for acting in the role unless they are also acting in their professional capacity and the will allows this. However, you will be entitled to have your legitimate and reasonable expenses reimbursed.

Overall, the role of an executor of a will in Scotland is one of great responsibility and can call for an understanding of legal and financial matters. At Gibson Kerr, our highly experienced and friendly team of personal law solicitors can help guide executors through the process, lending a much-needed helping hand. If you want to discuss the role of executors, will-making, or any other aspect of personal law, get in touch for a chat: email [email protected] or call 0131 202 7516.