What is an executor?
An executor is the person named in a will to manage the deceased person's affairs after death and to distribute their estate in accordance with their wishes. It is primarily an administrative role that involves a lot of work and carries considerable responsibilities.
If a person dies without leaving a will, then it may be necessary for the deceased's family to apply to the local sheriff court where the deceased person latterly resided to be appointed as executor. This can lead to delays with progressing the estate administration and therefore it is always strongly advisable – for this among many other reasons – to make a will.
What are the executor's duties?
An executor is responsible for administering the estate after death. In short, this means identifying the deceased person's assets, informing various asset-holders and other third parties of the death, securing and ingathering all assets belonging to the estate, settling any liabilities and transferring the net assets to the beneficiaries of the estate.
The executor must arrange payment of any funeral expenses, debts or tax before distributing the estate to the beneficiaries in line with the terms of the will, otherwise they can be personally liable. Creditors have a period of six months from date of death whereby they can intimate claims to the executor.
The executor also has duties to act in the best interests of the estate, rather than for any one individual. If an executor breaches their duties owed to the estate, then they can be made personally accountable for any resultant loss to third parties.
Who should I choose as my executor?
Choosing who to appoint as an executor is an important decision. An executor will require to handle your personal assets, which may carry significant financial and/or emotional value. You should therefore consider appointing someone who knows you well, is trustworthy and dependable, and is willing and able to take on the role. It would not be appropriate, for example, to name a young child as an executor, or indeed an elderly, frail person who is unlikely to be up to the task.
There is no rule against naming one of the beneficiaries in your will as an executor – and indeed this is fairly common in practice.
Being an executor can also be a very time-consuming position. On average, it is likely to take approximately 9-12 months to complete the administration of an estate, however it can take longer for more complicated estates.
Given the level of responsibility and commitment involved, it is advisable to discuss matters with your chosen executors to ensure that they are comfortable to take on the role (and so that it does not come as a surprise when the time comes!).
You may wish to consider appointing a professional executor such as a lawyer to reduce the administrative burden on family members following your death. Where family relationships are difficult, appointing a professional executor can reduce the stress and possibility of family tension at a difficult time. Appointing a company as a professional executor (such as our firm's trust corporation, Brodies & Co. (Trustees) Limited) ensures that there is always an executor who can act in the event of death or incapacity of other executors.
It is very common for family members who are named as executors to instruct lawyers to help them administer the estate.
How many executors should I have?
The key here is to ensure that you always have an executor who can act. If you are appointing one executor, we would always recommend that you include a backup executor in case your chosen executor can't act (for example, they are unwell, or they have died before you). It is also preferable to appoint an odd number of executors (3 tends to be good) as that allows your executors to act by majority and will prevent a deadlock in the event of a disagreement among the executors.
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