22 March 2019

My colleague recently showed me a rather unpleasant news article which involved a man who had murdered his mother, before trying to pawn off some of her property. Luckily, the law does not allow such people to inherit from their victim’s estate – they are regarded as ‘unworthy heirs’.

However, murdering the granter of a Will does not currently defeat provisions in the Will which appoints the murderer as the Executor. Therefore, despite being convicted to life imprisonment, the man refuses to resign from office and remains in control of his mother’s estate, including access to the mother’s home.

It is an obscure news story and something which is very rare in practice. However, it does highlight an important point that you should pay careful consideration to who you appoint as your Executor.

An Executor is the person nominated in one’s Will to deal with the administration of the estate after the death. Although, the Executor may employ the help of a law firm or other members of the deceased’s family and friends to help in the process, it is he or she that is formally responsible for the administration.

The Executor’s responsibilities include applying to the Court for the authority to act, paying off any debts owed by the estate and making sure that the assets are distributed correctly.  In some cases, the Executor may also be granted discretionary powers to exercise where the Will includes trust provisions or where there is a house in the estate which can either be sold or transferred, for example.

Some of the things you may wish to consider when appointing an Executor for your Will are:

• Is the proposed Executor someone you trust – It is important that they know your future wishes, and that you trust them to carry out the administration to effect these wishes.
• Is the proposed Executor comfortable with this role – Appointment as an Executor can be time consuming, stressful and upsetting at times. You will need to appoint someone that is capable to making decisions despite these difficult circumstances.
• Are you comfortable with the Executor knowing details of your affairs – The Executor will be required to seek out date of death values of all assets and debts in your estate and this will involve them making extensive inquiries into your affairs. The Executor will also have to make reasonable inquiries into any action you took during your lifetime which may affect the tax position, so make sure you are comfortable with your Executor finding out this information.
• Does your Executor have capacity – Your Executor must be at least 18 years of age and be mentally capable of carrying out such duties. It may be advisable to also consider if the circumstances will have changed by the time of your death. For example, is the proposed Executor significantly older than you?
• The practicalities of appointment – If the Executor lives abroad, for example, this will make it more difficult for any paperwork to be signed.

At this stage, you may think that the appointment of an Executor is too overwhelming a decision to make. However, if you don’t, the decision will be made for you.  If you don’t have a Will which appoints an Executor, before the administration can even begin, the beneficiaries of your estate will need to apply to the court to have an Executor appointed. This means the decision is taken from you and placed in the hands of the court, whilst also costing your estate additional money and time at an already difficult time.

Rest assured, these problems can be avoided by putting a Will in place which appoints suitable Executors to deal with your estate.  However, we appreciate that whoever you appoint may be acting as Executor for the first time and may be apprehensive about the role.    

BTO are currently participating in the Executor Education Programme in association with Close Brothers.  The purpose of the programme, which we believe is the first of its type, is to make you aware of what is involved in dealing with the administration of an estate and to help prepare your Executors for their role. We can also assist you in making the proper considerations to ensure that the Executor you appoint is the best person for the role. 

We are running a number of free sessions in both Glasgow and Edinburgh and would be delighted if you could attend one of these.  You can find out further information and sign up at the following website:-

https://www.moneytalksatclose.com/executoreducation/education/events 

Contacts:

Ross Brown, Partner rbr@bto.co.uk T: 0141 221 8012

David White, Solicitor dwh@bto.co.uk T: 0141 221 8012