When someone dies and they have a Will, the question of who the executor is can be found in the Will. That, of course, assumes the executor named in the Will is still alive and in full control of their faculties. That means we need to consider who can be appointed executor when there is no Will.
Why is it important to work out who can be appointed executor?
Someone needs to make decisions almost from the date of death of the deceased. The executor is the correct person to do that. The likely first decision will be about the funeral and the corresponding funeral costs. These will need to be paid from the estate.
An executor deals with the administration of the estate. That means working out the value of the estate. To do that, the executor must calculate the value of any property, assets and investments owned by the deceased. They must also make a list of the debts of the deceased and make arrangements to pay these.
The courts must formally appoint someone as executor. Once appointed, the executor has the authority to deal with all aspects of the estate.
Who is entitled to be appointed executor when there is no Will?
There is a recognised order of priority for appointing an executor when there is no Will. The order is as follows:
- Someone who is entitled to inherit all or part of the estate;
- The next of kin or next closest relation;
- A creditor;
- The procurator fiscal.
Clearly, the obvious choice is a spouse or civil partner, if they survive the deceased. The spouse or civil partner is entitled to inherit at least part of the estate through Prior and Legal Rights. Where there is no spouse or civil partner, the court can appoint a child because they are also entitled to Legal Rights.
Parents and siblings must be considered where there is no spouse, civil partner or children. Wider family members must be considered if there are no closer relatives.
Where the deceased had no traceable relatives, a creditor who is owed money by the deceased can seek appointment as executor. If so appointed, they will take on the responsibility of winding up and distributing the estate.
Finally, where nobody can be found to inherit the estate or if there are no creditors willing to seek appointment as executory, the procurator fiscal can be appointed. The procurator fiscal is usually appointed executor when the estate falls to the crown.
What happens if the executor in a Will has died or is incapacitated?
We also need to consider what happens if an executor named in a Will has died or is incapacitated. In such circumstances, unless there is a joint or substitute executor, an application will need to be made to the court to appoint an executor. The same order of priority as with an intestate estate applies but with one addition. Any legatee mentioned in the Will takes priority of appointment after creditors but before the procurator fiscal.
What is the best option for appointing someone as executor?
The best option to ensure your estate is administered properly is to appoint your own executor. When you make a Will, you decide who you will appoint. It is always sensible to appoint a joint executor or a substitute executor. That means it is more likely that at least one executor will survive you.
Specialist Wills Solicitors, Rutherglen, Glasgow and Lanarkshire
If you would like to find out more about making a Will, we recommend our article setting out where you start.
The solicitors in our firm have years of experience helping and advising clients on drawing up their Wills. Making a Will is one of the most important things you can ever do.
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