Managing a loved one’s Edinburgh estate - what’s my role?

As the effects of the pandemic and an exceptionally cold start to the year take effect, many of us sadly have to deal with the death of a loved one.

An executor must bear in mind the various duties that the role requires of them

For those nearest, whether it is a relative or the appointed executor, it is important to understand what the process is and the roles required to carry out the deceased’s wishes.

When someone dies, there can often be complex arrangements and wishes to fulfil, and this is where someone trusted by the deceased to assume the role of executor needs to take on a number of responsibilities.

What is an executor?

An executor is the person or persons named in a will as being responsible for the administration of a deceased person’s estate. If you are named as executor, your responsibilities will include the following tasks:

- Identifying the assets and debts of the estate (all the money and property owned, and debts owed by the deceased)

- Preparing an application to court for a grant of Confirmation (if Confirmation is required – this depends on the circumstances of the estate)

- Settling any debts or expenses due

- Calculating and paying inheritance tax and other taxes, if due

- Ingathering the financial assets of the estate (this may include selling the deceased person’s property)

- Distributing the proceeds of the estate to the beneficiaries.

What is a beneficiary?

The beneficiaries of an estate are the people who will inherit the assets from it. These may include the deceased person’s house, money or personal effects. There can be multiple beneficiaries named in a will or just one. Depending on the terms of the will, the beneficiary may be entitled to a percentage share of the overall estate, a particular asset or a cash sum. Beneficiaries tend not to be involved in the administration of the estate, unless they are also appointed as an executor.

Can an executor inherit under a will?

An executor can also be a beneficiary and inherit from the will they are executing. When preparing a will, you can name someone as both an executor and beneficiary - in fact, this is quite common. In these cases, the executor/beneficiary needs to be mindful of the potential for conflict between these different roles.

An executor must bear in mind the various duties that the role requires of them. One of these duties is to act in the interest of all the beneficiaries of the estate. If the executor is one of a number of beneficiaries in the estate, when making important decisions, they must remember their responsibility to all of the beneficiaries and not just themselves. In estates that are particularly contentious, there could be potential for a conflict of interest to arise between the roles of executor and beneficiary. However, we find in the vast majority of cases there are no issues.

What if there is no will?

If the deceased has not left a will, the intestacy procedure will apply. Applications for appointment as executor of the estate need to be submitted to one of the 10 sheriff court hubs. This process may take longer than usual at this time because the courts are operating with restricted numbers of staff.

Here to help you

The personal law solicitors at Gibson Kerr are happy to help you with the process of administering an estate. They are working remotely and able to hold a telephone or video meeting with you (through Skype, Zoom or similar).

Please get in touch with personal law partner, Lindsay Maclean on 0131 202 7516 or email [email protected], or visit www.gibsonkerr.co.uk for more information.