News & Updates
The Role of Executor
When someone close to you passes away, it is the most difficult of times. There is often a lot to do, and it is all infused with intense emotion.
Organising your loved ones affairs often seems the least important of the things to do, but over time, it can become the main issue amongst children and siblings – and if it is not handled properly, can provide a channel for all the emotion to cause permanent rifts.
You may have been appointed executor in your parents or siblings will. What is not always clear is that acting as the executor of a loved one brings with it duties and responsibilities. An executor is responsible for identifying and then “ingathering” all of the deceased’s assets. Then they have to be distributed in terms of the will, debts paid and inheritance tax dealt with. There is a responsibility to act in the interests of any beneficiaries.
What is sometimes less well understood is that, as executor, you are the direct representative of the deceased, and in many ways you and your fellow executors are “one person”. This can cause difficulties if there are existing family rifts, and especially if there are only two executors. When a solicitor acts in the executry, they are effectively acting for the deceased, and not personally for the executors. They can’t “referee” if the executors fall out.
So it’s important that executors put aside any differences and band together for the good of the beneficiaries.
They should do their best to communicate openly and effectively, and ask the solicitor dealing to highlight any issues which need to be addressed. If conflicts do arise they should be clearly identified and advice should be taken on how they can best be resolved – remember, the solicitor dealing with the executry cannot take sides. Sometimes a majority decision is enough (if there is a majority). It can be difficult, but executors should always try and work together to resolve problems.
Where the executor is also a beneficiary, and there are issues with the will, this can become very difficult indeed. What a beneficiary expects from a will may be at odds with what an executor is bound to do. Other advisors may become involved. In that case, it is best to see what can be done to advance ingathering of assets, and what has to be resolved by other means. Sometimes these matters are best resolved by the involvement of a mediator, to try and help the executors and beneficiaries reach a solution.
Families can be separated by many miles and years of conflict – but it is always wise for the executors to gather together with their appointed agent, even virtually, at the start of any executry, to understand their duties and to signpost any problems from the start, adopting the mindset “how do I get this resolved while meeting all of my duties as a trustee to my loved ones legacy?”
Getting the best advice makes all the difference.
The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at May 2022. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.