Explainer series — an executor’s role and responsibilities

But, longer-term, who is ultimately responsible for ensuring everything has been attended to and all the deceased’s affairs taken care of?

That person is the executor.

In this explainer guide, I will outline the executor’s role, consider how you might become one, and what your responsibilities are if you do.

What is an executor?

The executor’s main purpose is to carry out the administrative processes involved in winding up an individual’s affairs after they’ve died: gathering funds, paying bills and, eventually, making over whatever is left to the estate’s beneficiaries.

The executor carries out their role for the benefit of all those with an “interest” in the estate, whether that’s because the deceased owed them money or they’re someone who is entitled to a legacy or bequest.

In most cases, you’ll continue being an executor until the deceased’s estate is fully wound up.

How is an executor appointed?

There are only two ways you can become an executor.

• The first is if you’re named as an executor in the deceased’s will — known as an Executor-Nominate appointment

• The second is when the court appoints you as an executor — known as an Executor-Dative appointment

When talking about an “executor” we tend not to differentiate between the two because, while there are some minor procedural differences at the start of the overall administration process, both have the same core functions, powers, and responsibilities.

Specifics of appointment under a will

When preparing a will, one of the most important questions we’ll ask a client is who they wish to appoint as executor as, while decisions about who the money and assets go to are crucial, they count for nothing if no-one’s able to carry out those wishes.

An executor can be almost anyone you like — as long as they’re at least 16 years old — but they should be someone you trust. This could be a family member (receiving something under the will doesn’t mean someone can’t be an executor), a friend, or an independent professional such as a solicitor.

It’s always best to speak to the person you’re considering appointing to make sure they’re happy to take on the role. They aren’t obliged to accept and can decline.

As such, we suggest naming more than one person, as it means that there will be someone else ready to take on the duties if needed.

If all the named executors have died — or they’re unable to take on the role — then the person receiving all, or part, of the residue of the estate (whatever’s left after all debts, costs and legacies are paid) can step in. If you’re in this position, you may need to apply to the court.

Appointing an executor through the court

If there’s no will, or a change of circumstances means an executor isn’t appointed under a will, you’ll have to apply to the court.

Where there is no will — only those who are entitled to all, or part, of the estate can seek appointment as an executor.

This means you’ll need to start looking into what assets there are and prepare a family tree before proceeding and, if there’s no immediate family, this can delay things.

Once you know who’s going to take on the role, you can make the application. Unlike appointment under a will, the person the court appoints can’t resign or bring other executors in to assist them.

Where there is a will but, for whatever reason, the named executors can’t fulfil the role (they may have died, or may be incapable of carrying out the duties) then one of the beneficiaries, or the respresentative of a beneficiary who can’t take it on themselves, can be appointed.

For example, in a recent Aberdeen case — both of the named executors had died. Normally, the widow could have stepped in, but was “incapax", the legal term meaning she couldn’t make decisions for herself. As such, she wouldn’t be able to carry out executor role.

However, she had appointed her daughter as her attorney and the court ruled the daughter, as the widow’s duly appointed representative, could be the executor for her father’s estate.

This is an important judgment because it’s the first reported case where an attorney has been allowed to apply to the court to be appointed executor.

Given the alternative would have been to seek a far more involved guardianship or intervention order, this is a welcome decision.

The executor’s role

The executor’s primary role is to administer the deceased’s estate, which involves collecting information about it, ingathering the assets and — in due course — paying out funds.

Usually, you’ll appoint a solicitor to guide you through the process, but you’ll still have the ultimate responsibility and will sign off on each stage of the process.

It can take time to find out what assets a deceased had, and it is only once that investigation is completed that the next formal stage can take place.

Once a full inventory of assets and debts is available, as the executor, you’ll prepare an application for confirmation which, once granted by the court, is your authority to deal with the deceased’s assets.

This will allow you to sell any properties or withdraw funds from bank accounts.

And when you have those funds, you’ll be able to arrange to pay any debts before accounting to the beneficiaries.

While accounting does include financials, the actual remit — in this context — is much wider.

It’s usually the first time the executor provides a full report of activities to the beneficiaries so the latter can raise any questions and, if they are satisfied everything is in order, approve what’s taken place.

Conclusion

Not everyone will be appointed as an executor and, when it’s because a loved one has died, it’s probably not a role you want multiple opportunities to gain experience in.

Having said that, nothing can happen without an executor being in post, and our private client team is always happy to help guide you through the process.  

And, if you’ve found this article useful, you can always take a look at other commentary from my colleagues on our news and views page.