When you make a Will, one of the tasks you need to deal with is who to choose as your executor. Clearly, if you are married, in a civil partnership or cohabiting with someone, the obvious choice is likely to be your spouse or partner. That’s usually what happens. However, what might happen if your spouse or partner is unable to fulfil the executor role.
For those who are not married, the choice might be much more difficult. Again, a family member is usually the obvious choice. You also need to think about what happens if that person dies before you.
What happens if your executor dies before you?
If you only have one executor nominated in your Will and they die before you, an application will then need to be made to the court to appoint another executor. During this time, your estate cannot be wound up or distributed.
Whilst the appointment of an executor through the court process does not take a huge amount of time, it does cause delay and will involve additional cost.
To avoid the delay and costs, it is always sensible to appoint a second person as executor.
What happens if your executor is still alive but has lost their faculties?
If your executor is alive but has lost their faculties, they will not be competent to be appointed as an executor. That places you more or less in the same position as you would be if your executor had died before you. However, in the recent case of Joy Monique Cornforth and Andrew Cornforth heard at Selkirk Sheriff Court, the sheriff decided that the executor’s attorneys could be appointed executors where the executor appointed in the Will had lost her faculties. However, the sheriff made clear that this was because the Will did allow substitute executors.
Appointing a joint or substitute executor
When you instruct a solicitor to draw up a Will for you, they will discuss your options when appointing an executor. They will invariably recommend you appoint either a joint or substitute executor.
When you appoint joint executors, either or both will be able to deal with the administration of the estate. This means that if one of your appointed joint executors dies before you or becomes incapacitated, the joint executor can continue to deal with the administration of your estate.
Where you appoint a substitute executor, they are only able to take the place of your executor should your appointed executor die or become incapacitated.
Things to think about when appointing an executor
When you are thinking about appointing an executor, it is important to consider their age. You have to ask whether they are likely to live longer than you. And, if they are, is it likely they will be able to deal with the administration of your estate.
You also need to think about where they live. If you live in Scotland, do you want to appoint a family member living in Australia as your executor? If you do, it is likely to cause significant delay in dealing with documentation that needs to be signed and potential additional expense as they live outside Scotland.
Experienced Wills solicitors in Dunfermline, Fife
Stacey Parker has considerable experience in advising clients of all aspects of drawing up a Will. She is well versed in the law in this area and has advised clients in Dunfermline, Fife and throughout Scotland on preparing their Wills.
If you would like to discuss drawing up your Will and who you should choose to be your executor, please call Stacey on 01383 629720 or email Stacey at stacey@maloco.co.uk.
