When you're named as the executor of a Will, you're being asked to take responsibility for administering the estate of the person who made the Will, called the testator, after they have died.
After someone dies, executors are expected to begin their administrative duties immediately; long after other mourners’ lives have returned to normal, the executors will still be administering the estate.
The duties of an executor include taking an inventory of the deceased’s possessions and debts, collecting the assets, paying the bills and distributing the legacies (whether specific items, cash sums or residue) and following the testator’s wishes as closely as possible.
You may consider your duties as an executor to be a daunting task, but don't panic. To help you, here is a summary of what you need to do when someone dies in Scotland, taken from Lawpack's DIY Probate Kit.
Register the death and obtain copies of the death certificate.
Attend to the funeral.
Find and review the deceased's will or establish if they died intestate (i.e. without a will).
Identify the beneficiaries.
Find out who the will's executors are and whether they are able and willing to act. If not, or if the deceased didn't leave a valid will, determine who will act as executors of the estate. Get the agreement of the executors in writing.
Apply for confirmation (the Scottish equivalent of probate) to the Commissary Department of the Sheriff Court serving the area in which the deceased was domiciled at the time of death. The application forms - along with expert guidance on completing them - are available in Lawpack's DIY Probate Kit.
Secure the house and/or other property of the deceased, insuring the house, car and any other valuable items as necessary.
Organise yourself for valuing assets, corresponding with others, keeping financial records and receiving the deceased's mail. Open an executors' bank account.
Write to all financial and business organisations in which the deceased had an interest. Include a copy of the death certificate and request the necessary information for the confirmation application and the returns to HMRC.
Raise funds to pay inheritance tax, if the estate appears to be worth more than £325,000 (or where it exceeds the higher value available after application of a predeceasing spouse’s available inheritance tax allowance). Raise the money, for example, by borrowing or selling some of the deceased's personal property. Inheritance tax must be paid before confirmation can be issued. Consider raising the funds from the deceased’s own account using the Inheritance Tax Direct Payment Scheme.
Fill out the confirmation forms as information is collected and return them to the Sheriff Court concerned. The form of application for confirmation is Form C1. Complete Form C5 if the estate is either excepted or exempt and excepted. However, if the estate is neither an excepted estate nor an exempt and excepted estate, then it’s necessary for Form IHT400 to be completed and submitted to HMRC prior to applying for confirmation.
The Sheriff Court concerned sends confirmation to you by post along with any certificates of confirmation.
Send copies of the appropriate certificate of confirmation to each appropriate organisation (bank, etc.) to show the executors' entitlement to deal with the deceased's assets. In return, the organisations will release the deceased's assets to the executors and close or transfer the deceased's accounts and files.
Advertise for creditors, if necessary. If any large or unexpected claims result, you should consider seek professional advice.
Respond to any queries raised by HMRC concerning the values of assets or liabilities of the estate. Agree final figures with them. Report any additional assets or liabilities that have come to light since confirmation was granted.
When all the assets are collected, pay debts, including any unpaid income tax and capital gains tax relating to the deceased's income up to the time of death.
Ask HMRC for an income tax return or repayment claim form and complete it with details of the income of the estate to the end of the tax year during which the deceased died. Pay any tax due. A tax return may also be needed for each subsequent tax year if the administration of the estate isn't complete within one tax year.
Ask the HMRC for Form IHT30 (Application for a Clearance Certificate). Complete it and have it signed by all the executors and in due course receive the signed discharge certificate from HMRC.
Check that there have been no claims against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 during the six months following confirmation and that there were no claims made by cohabitees in a Scottish estate in the six months after the date of death. Settle any claims for legal rights; if legal rights are to be renounced by the entitled parties, obtain formal discharges, to be placed with the estate papers. Barring any such challenges, the estate can be distributed.
Distribute the legacies, when all the assets have been accounted for and debts paid. Get a receipt from each beneficiary.
Draw up estate accounts. Get approval of the accounts from all residuary beneficiaries (or those entitled under the intestacy laws) and send them copies. Make payment of the final balance of residue due to beneficiaries. Issue HMRC Form R185 (Estate Income) to the residuary beneficiaries showing their shares of the income of the estate and the tax deducted from it during the tax year.
Close the executors' account, when all cheques have cleared.
Administration of the estate is now complete. All accounts should be saved indefinitely, along with the other principal estate papers.
Get more detailed information and advice on your duties as an executor - plus what confirmation forms to use - in our DIY Probate Kit.
Published on: June 30, 2011