Key Responsibilities in Executry Services in Scotland 

Key Takeaways

Executry services in Scotland, akin to probate in England and Wales, involve managing and administering the estate of a deceased person. The executor, named in the Will or appointed by the court in the absence of one, has several key responsibilities. First, they must obtain confirmation (similar to probate), which grants them the authority to manage the estate. This involves submitting an accurate inventory of the deceased’s assets, which must be carefully valued.

Once confirmation is secured, the executor gathers the deceased’s assets, such as property, savings, and investments, and contacts relevant institutions to manage or sell them, as necessary. They must also ensure all debts, including mortgages, personal loans, and credit card bills, are paid, alongside any taxes like inheritance tax.

After debts and liabilities are settled, the executor distributes the remaining assets to beneficiaries. If the deceased left a Will, the estate is distributed according to its instructions; otherwise, the estate is divided according to Scottish intestacy laws. The executor must act impartially, ensuring all beneficiaries receive their entitled share, and resolving any disputes that may arise.

Executors are also tasked with legal and administrative compliance, keeping accurate records of transactions and decisions, and handling disputes or challenges that may occur during the process. Once all matters are resolved, the estate is concluded with the final distribution of assets and closure of accounts.

Given the complexities involved, many executors seek legal advice to fulfil their duties correctly, ensuring the estate is managed in accordance with Scottish law. At Jones Whyte, we have a team of over 30 people who can support with this, guiding you through every step to ensure the estate is administered correctly. Find out more today by calling us on 0900 292 2000.

What are executry services in Scotland?

Executry services, known in England and Wales

As probate, deal with administering the estate of someone who has passed away. In Scotland, executry law follows distinct rules and procedures, making it crucial for those involved to understand their key responsibilities. The individual or individuals responsible for managing the estate of the deceased are called executors. Their duties are vast, involving legal, financial, and sometimes personal considerations. Understanding these responsibilities ensures the estate is settled lawfully, fairly, and in accordance with the wishes of the deceased.

1. Obtaining Confirmation

The primary legal document needed to manage an estate in Scotland is the grant of confirmation. Confirmation is similar to probate in England and Wales, and it gives the executor the authority to gather the deceased’s assets and settle debts. Executors have the responsibility of applying for this document by presenting an inventory of the deceased’s assets to the court. The inventory must be accurate and encompass all assets, including property, savings, investments, and personal belongings. Executors must ensure they have valued all assets correctly, as incorrect valuations can lead to legal complications. We will support you with this to avoid unnecessary complications.

Before confirmation can be sought, it is necessary to determine whether the deceased left a Will. If there is a Will, it will nominate the executor or executors. In the absence of a Will (intestate estate), the court appoints executors, who are often the closest relatives of the deceased. The executor must ensure that they have legal authority before managing the estate.

2. Locating and Gathering Assets

Once confirmation is obtained, the executor must identify and gather all the deceased’s assets. These assets could range from bank accounts, properties, stocks, and shares, to pensions and personal possessions. It is the executor’s responsibility to contact all relevant financial institutions, businesses, and other organisations to notify them of the death and confirm the value of the deceased’s holdings. There is a government service available called ‘Tell Us Once’ to make it easier to advise all government related organisations of the death.

In some cases, the executor will need to sell off assets to settle liabilities or to distribute the estate among beneficiaries. This could involve selling properties or investments. Executors must ensure that this is done prudently, often seeking financial advice to ensure they are making decisions in the best interests of the estate and beneficiaries.

3. Paying Debts and Liabilities

A significant responsibility of an executor is to settle the debts and liabilities of the deceased. Before any assets can be distributed to beneficiaries, all outstanding debts must be paid. This can include mortgage repayments, personal loans, credit card debts, and outstanding bills. Executors must also account for funeral expenses, which can usually be paid from the estate before other debts.

Executors should be aware of potential tax liabilities, including inheritance tax (IHT). In Scotland, estates above a certain threshold are subject to inheritance tax. Executors must ensure that any tax owed is calculated correctly and paid on time. Failure to settle tax liabilities could result in legal penalties and complications in the distribution of the estate.

Additionally, executors must deal with any claims against the estate. For instance, if a spouse, civil partner, or child of a deceased (or issue of a child that died before the deceased) believes they were unfairly excluded from the Will or that the will does not reflect the deceased’s intentions, they may intimate a claim of legal rights. Executors must handle such disputes carefully, often seeking legal advice to resolve matters without breaching their duties. Legal Rights is a rule under Scots law that is available to be exercised within 20 years of a person passing away.

4. Distribution of the Estate

Once all debts, liabilities, and taxes have been settled, the executor can distribute the remaining assets to the beneficiaries. The way the estate is distributed depends on whether the deceased left a Will. If there is a valid Will, the executor must follow the deceased’s instructions precisely. This might involve complex arrangements, such as creating trusts for children or providing for dependents.

In cases of intestacy (where no Will is left), Scottish law dictates how the estate is divided. This is known as “legal rights” in Scotland, where specific relatives, such as spouses, children, and sometimes parents or siblings, are entitled to portions of the estate. Executors must be familiar with the rules of intestacy to ensure the estate is distributed lawfully. Jones Whyte are able to advise on all of this.

An executor has a fiduciary duty to act impartially and in the best interests of all beneficiaries. They must not show favouritism or personal bias. Transparency and communication with beneficiaries throughout the process are essential to prevent disputes or misunderstandings.

5. Legal and Administrative Compliance

Executors are also responsible for complying with all legal and administrative obligations associated with the estate. This is why we recommend getting in touch at the earliest opportunity, so that we can ensure legal compliance from the beginning. This includes filing necessary documentation, such as tax returns and final accounts, with the relevant authorities. Executors must keep accurate records of all financial transactions and decisions made during the estate’s administration. These records may be required by third party institutions including HMRC or beneficiaries to ensure the estate has been managed appropriately.

This is of utmost importance for particularly larger or more complex estates. In Scotland, executors can be held personally liable if they fail in their duties, so it is imperative that they understand and adhere to all legal requirements.

6. Handling Disputes and Challenges

Executors may face disputes during the executry process, especially if there are disagreements between beneficiaries or if the Will is contested. Executors have a responsibility to mediate such disputes and attempt to resolve them amicably. This might involve negotiations or, in some cases, formal mediation.

If disputes cannot be resolved informally, the matter may need to be settled in court. Executors must ensure they are acting within their legal rights and will need further legal support in contentious situations. Handling disputes can be one of the most challenging aspects of executry services, requiring sensitivity, patience, and a thorough understanding of the law.

7. Conclusion of the Estate

Once all assets have been distributed, debts settled, and legal matters resolved, the executor’s final responsibility is to close the estate. This involves completing final accounts, ensuring all taxes have been paid, and providing the beneficiaries with statements of their entitlements and drafting beneficiary discharges.

The conclusion of the estate can often be a lengthy process, depending on the complexity of the assets and any disputes that arise. Executors must ensure that all outstanding matters are resolved before formally concluding their role. If any errors or omissions occur during the process, it may be necessary to reopen the estate to resolve them, so thoroughness is essential.

Conclusion

The key responsibilities in executry services in Scotland involve managing and administering the deceased person’s estate in accordance with Scots law. Executors must first obtain confirmation, a legal document granted by the relevant sheriff court, which provides authority to manage the deceased’s assets. Executors must gather these assets—such as bank accounts, property, and household contents—and settle the deceased’s debts, including funeral expenses and outstanding accounts. This process also involves completing the necessary inheritance tax forms and paying any inheritance tax, capital gains tax, or income tax owed to HM Revenue and Customs.

Once debts are settled, the executor must distribute the remaining assets to beneficiaries, ensuring that any legal rights claims, particularly from a surviving spouse or civil partner, are honoured. In intestate estates, where no Will exists, the estate is administered according to intestacy laws. Executors may face potential challenges, such as disputes between family members or legal rights claims, which require careful handling.

If the estate includes property, the executor may need to sell assets to release funds and ensure sufficient funds are available to cover debts. Throughout, executors must adhere to the deceased’s wishes and ensure all aspects of estate administration are managed fairly and lawfully, as they can be personally liable for any errors or omissions.

Jones Whyte has a specialist Bereavement team to support and guide you throughout the entire process, so that you can focus on supporting loved ones at this difficult time. To find out more, call us on 0800 292 2000.