Executors & Guardians Resources
Although the role is a responsible one, the key aspects are straightforward and easily summarised. For someone unfamiliar to the role the following questions cover the key information required.
Q: What is an Executor?
A: An Executor is the person responsible for administering the estate of the deceased person. The Executor:
- Writes to all of the bodies involved to obtain values of assets and liabilities
- Identifies the beneficiaries and creditors i.e. the banks, building societies, companies etc where the testator held their money, their shares etc
- Obtains Confirmation from the Court, if required
- Circulates the Confirmation to the creditors and gathers in the assets in the estate
- Pays all debts and funeral expenses
- Distributes the estate in terms of the Will
Q: How is an Executor Appointed?
A: An Executor is appointed either in the deceased’s will or failing that, by petitioning the Court.
Q: Who can be appointed an Executor?
A: Anyone over 16 in Scotland and 18 in the rest of the UK who is of sound mind and legally solvent.
Q: Can an Executor wind up the estate by themself?
A: Technically the answer is yes. However, the Executor has legal responsibilities which must be fulfilled properly. It is advisable if the estate is sizeable to enlist the help of a "technical" executor i.e. someone with the knowledge to find their way through the executry or probate process to ensure that the Executor’s role is fulfilled properly in terms of their legal responsibilities. That leaves the Executor free to perform what becomes essentially an overseeing role. An executor could find themselves personally responsible if they fail to pay a beneficiary or settle a debt.
Q: Are you paid for acting as an Executor?
A: You have no legal right to be paid as an Executor but the deceased may make provision in their will
Q: Can I claim for expenses I incur?
A: Yes; an Executor can claim from the estate any expenses incurred in connection with their role as an Executor
Q: What happens if there is no Will?
A: A petition to the Court is required to appoint an Executor. The estate is then distributed to the next-of-kin in accordance with the Laws of Intestacy (dying with no Will).
Q: What if the next-of-kin don’t agree with the Will?
A: A spouse or child of the deceased has rights to a share of the estate and may make a claim if they are overlooked in the Will. If the deceased dies without a Will, persons dependent on the deceased may have a claim.
Others have limited rights to challenge the Will’s contents – for example on the grounds of the deceased’s in capacity when the Will was made, or that they were subject to undue influence. Specialist advice would be required in the event of such a claim.
Q: In summary, what is the Executor’s role?
A: An executor is a representative of the dead person. The executor must pay off any debts or taxes from the person’s "estate", and then distribute it to the "beneficiaries" (the people who will benefit, or inherit). An estate is normally made up of someone’s property, money and possessions.
What is the Role of a Guardian?
A guardian is a person who is named in a Will as being the person the deceased would choose to look after any children under 16 in Scotland or 18 in the rest of the UK.
Who has Automatic Parental Responsibility for a Child?
Both biological and legally adopted children (but not foster children) enjoy the same rights in the eyes of the law.
A mother has automatic parental responsibility for a child. So therefore, if the father dies, there would have been no need to appoint a guardian to the children.
If the parents (biological or adoptive) are married at any time after the conception both the mother and father have automatic parental responsibility.
Does a biological Father have Automatic Parental Responsibility if a couple are not married?
The answer to this is — not necessarily. Certain conditions have to be satisfied before this would prevail.
Firstly, the father would have to be named on the birth certificate.
Secondly, the child would ALSO have to be born after 4th of May 2006 in Scotland, 1st of May 2003 in England and Wales and 15th of April 2002 in Northern Ireland.
If BOTH these conditions are not satisfied, the mother will need to appoint the father as guardian in her Will if she wants to ensure the father would continue to have custody of the child.
Appointing a Guardian in the Event of the Death of both parents
If parents have children under the age of majority, it is advisable to appoint guardians in the Will. Although not binding, it gives a good indication of who is preferred to look after the children.
Many considerations should be given to the appointment of guardians:
- How old are the guardians? Will they be physically capable of looking after children?
- Where do they live? Will it mean disruption to the children if they have to move
- Do they have the finances to look after the children? This can often be solved by the parents taking out Guardian Insurance to provide an income that will allow for the expense of bringing up children until they can look after themselves… and many others.