A crucial part of the estate planning process is choosing your executor and, for many, this will typically be a loved one such as your spouse or children. However, this raises the question as to whether they can also be named as a beneficiary or if this could cause them to be disinherited from your Will.
In Scotland, there is no legal reason as to why a person cannot be both a beneficiary and act as your executor. In fact, this is very common. In this article, we address some of the frequently asked questions about the role of an executor, the rights of a beneficiary, and what to be mindful of when signing your Will before an appropriate witness.
A beneficiary is someone who stands to benefit from the Will, meaning that they have been named and left money, property or other belongings. You can name anyone you wish as a beneficiary and include multiple beneficiaries in your Will.
The person you choose to be your executor will be responsible for winding up your estate on your death. For practical reasons, it is advisable to have more than one executor. While many people choose close relatives or friends as their executor, you may also appoint a professional - such as a solicitor, accountant or financial advisor.
The job of an executor can be both complicated and time-consuming, even for the simplest of estates. The executry process can take months or even years, with the executor having to take on various duties such as obtaining confirmation, selling property, dealing with tax matters, and ensuring the assets are distributed in accordance with the Will. Executors can appoint professional agents to assist them with their responsibilities and our Executry Group has considerable experience in helping with all types of estates.
Beneficiaries have a right to receive the share of the estate to which they are entitled in terms of the Will. However, they also have a right to information throughout the executry process. Beneficiaries should be kept up to date with the administration of the estate by the executor.
Beneficiaries may also ask to see the estate accounts when they have concerns that the executor is not carrying out their role properly. Similarly, if a beneficiary believes the executors are not managing the estate effectively, they may take legal action against them.
While an executor may potentially witness the signing of your Will, they should not do so if they are also named as a beneficiary. If a beneficiary (or their spouse/civil partner) was to witness your Will, then the Will may be challenged or additional steps required after your death to satisfy the relevant Sheriff Court of the Will’s validity. To minimise the risk of disputes, it is best if the witness to your signature is completely independent, i.e. someone who is not named in the Will and has no interest in your estate.
If you have any questions about the issues covered here, or if you would like to discuss your Will or any Estate Planning matter with our lawyers, please fill in our contact form or call us on 0131 341 3741 .
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