Duty OF Executors - Contested Wills In Scotland

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The Duty Of Executors - Scottish Wills

The Duty Of Executors:
An important part of making a will is to nominate someone to be its executor when you die. The executor must ensure that the estate is handled exactly as the testator wished according to the details included in their will. This can be extremely complex if the estate is a large one and in these cases the duty of executors in Scotland can be onerous thereby ensuring that they enlist the services of an experienced solicitor to help them meet the requirements of the role. If the estate is a very small one they may not feel this is necessary however. In cases where the deceased has failed to make a Scottish will (or even where they have made one which is deemed to be invalid) an administrator will take over this role, but they may still require expert help to do what is necessary. The duty of executors and administrators is almost identical.

Distribution Of Assets To Beneficiaries:
The duty of executors in a Scottish will extends mainly to three items. Firstly they should account for and call in all the assets that person left behind; secondly they need to identify and settle any debts remaining upon the person's death; and thirdly they need to distribute whatever is left according to the testator's wishes between all the beneficiaries named in the will. Certain items do not fall under the responsibility of the executor after the death of the testator, including for example any property they owned which is in a country other than Scotland. A solicitor will be able to advise of any such parts of an estate which fall into this category, and indeed will handle everything if requested to do so by the executor.

Inheritance Tax Liability:
While the executor is responsible for paying any outstanding bills before the net value of the estate is shared among the beneficiaries as indicated by the will itself, the duty of executors also extends to paying the right amount of Inheritance Tax to the Crown. This also applies to the tax which may be incurred on any monetary gifts the deceased gave away within seven years of their death, if the person who received that gift doesn't pay up within the first year after the amount falls due.

Important Facts You Should Know

What is a Will?
A Will is a just a written record that says who you want your money and possessions to go to when you die. As it is a very important document the law specifies what will be recognised as a Will. Remember, though, that it is a temporary document and can be changed at any time.

Why should I make a Will?
To ensure that your wishes are carried out. Otherwise you leave it to chance and the Law of Intestacy. The result may not be what you expect. Making a will should also be about the little things, like leaving a favourite piece of jewellery to a godchild or a painting to a niece. If you own your own home you should make a Will but even if you don't own your own house you may have a little money, some furniture or jewellery or even some life insurance policies. It all adds up!

When do I need to make a Will?
Now! Only by doing this can you put your mind at rest that your wishes will be carried out. Everyone should have a Will - there are few who have nothing of material or sentimental value to leave behind as a legacy. Not only that, you will ensure that you leave behind no anxieties or difficulties about winding up your affairs.

Anyone can make a Will
Of course, you don't have to make a Will, but experts agree that by making a will you will be able to set out who is to benefit from your property and possessions (your estate) after your death. It will also help make sure that your estate, after any taxes and debts have been paid, is passed on as you want.

You can choose the Executors
Executors are people who are responsible for passing on your estate. You can appoint executors by naming them in your will. The courts can also appoint other people to be responsible for doing this job. If you do not make a will, your estate will be passed on according to a scheme laid down in law. Who is entitled under this scheme (which is designed to reflect the wishes of the average person) will depend on which relatives survive you, if any.

Help is at hand
If you are thinking of making a will, you may want to get the help of a lawyer or a voluntary organisation such as Citizens Advice. For more information, you can visit the Citizens Advice website at www.cas.org.uk You can also phone the Scottish Executive Civil Law Division on: 0131 244 3581

…for the leaflet 'Rights of Succession'. This explains what happens if someone has died without making a will. You should check that any will-making service makes Scottish wills for people living in Scotland. 'What to do After a Death in Scotland' is another Scottish Executive leaflet that you may find helpful if someone close to you dies. You can phone the Scottish Executive on the number above for a copy. Your local Citizens Advice Bureau may be able to give you a copy too

If you die without a Will (intestate)
If you die without making a Will, or if your Will is invalid, you die intestate. The management of your estate, which is your house (if you have one) and any other assets minus all your debts, is then done by administrators (called 'executors-dative' in Scotland) appointed by the court, who will probably be your close relatives. In some cases, your possessions may go to the Crown, but generally the bulk will go to your spouse or if you don't have one, your children. If you have no children, other blood relatives are next in line. One in two people in the UK currently dies without making a Will and if you haven't done so already, it's a really good idea to prepare one. In Scotland, the rules of intestacy allow your spouse and dependants to claim your property and money regardless of your wishes. If no surviving relatives can be found, your entire estate goes to the Crown.

- A niece or nephew you hardly know could end up benefiting from your inheritance rather than your spouse.

- Live-in partners are not recognised by inheritance law. This means that, even if you have lived together for many years, your partner may be left with nothing if you haven't made a will.

- When you marry, you would think that any previous Will you'd made would be nullified - not so! In Scotland, even if you divorce and don't make a new Will the original one remains valid, so your ex could inherit your wealth…