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What to do after a death in Scotland ... practical advice for times of bereavement: 11th Edition

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11. THE EXECUTORS

What is an executor?

An executor is a representative of the dead person. The executor must pay off any debts or taxes from the person's "estate", and then distribute it to the "beneficiaries" (the people who will benefit, or inherit). An estate is normally made up of someone's property, money and possessions.

Who becomes an executor?

An executor (or executors) may be named in someone's will. If no executor is named or if there is no will, your solicitor or the sheriff clerk will arrange for the court to appoint an executor called an "executor dative". An executor dative will normally be the surviving spouse or civil partner. If there is no such person, another person entitled to inherit from the estate may be able to apply.

What does an executor do?

An executor must:

(i) make an inventory (a list) of all the money, furniture, savings and any house or other property belonging to the person who died. This is known collectively as his or her "estate";

(ii) pay inheritance tax, if this is due. For deaths on or after 6 April 2004, inheritance tax is not in general payable unless the total value of the dead person's estate together with any property life rented and any gifts made within 7 years of the death exceeds £325,000 for the year 2010-2011 and £325,000 for the year 2011-2012. Please note these figures are adjusted from time to time. You can get further information and advice about inheritance tax from HM Revenue & Customs Charities, Assets and Residence. You can find their details at Part VI;

(iii) obtain confirmation to the estate. Confirmation is the legal document which gives the executor authority to receive payments due to the estate and to make payments due on the estate. Confirmation may not be required in some small estates (see "Small Estates" below);

(iv) "in-gather" the estate (see below);

(v) distribute the estate to those entitled to it (see section 13 and part V).

Does an executor need a lawyer?

It is possible for an executor to handle an estate without any legal help, but he or she may decide to employ a solicitor to help them. Even if someone decides to do it without legal help, he or she may want to seek advice on specific points from a Citizens Advice Bureau or a solicitor. The executor's out of pocket expenses, including any lawyer's charges, are met from the dead person's estate.

Dealing with a large estate or one where a house or other property is involved can often be very complicated and time consuming. In the event of any mistakes being made, the executor is legally responsible. If an executor is in any doubt about his or her ability to carry out the correct procedures, or if there is any dispute, the executor is strongly advised to consult a solicitor.

In the case of a small estate (see section 12), special simplified rules apply. This simplified procedure makes it easier for an executor to deal with the estate without taking legal advice. However, the executor is still legally responsible for any mistakes. The executor's work is quite complicated and time consuming, even when dealing with a small estate.

In-gathering the estate

The confirmation is the executor's authority to receive payments from the banks, insurance companies and other organisations, institutions or persons who have property or money belonging to the dead person. The executor will need to produce the confirmation to obtain payments.

Where there are many items in an estate situated in different places this can slow up the process and the sheriff clerk will, if asked, provide for any individual item a certificate of confirmation which will serve the purpose of the full confirmation for that item. A small fee is payable for any certificate.