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Better Together

04 November 2014

The Scottish Independence Referendum in September got many people thinking. Few of us get to do something really influential in our lifetimes, so for those who got to vote on a nation’s status, it must have felt very empowering. The electoral turn out shows that when a decision really matters, we feel more engaged in it, and the outcome suggests that, to the majority, doing things together is often better than going it alone.

A Will is probably the most influential document most of us will make: it can govern everything we own and, in writing one, we get to make far reaching decisions about what happens on our deaths. Perhaps, more significantly, we also get to choose who will deal with everything when we are gone.

The first concern for many of us is choosing who will inherit our assets; the appointment of executors is secondary. But merely having this choice is already a big advantage for those who write Wills: the intestacy rules (which apply where no Will is left) don’t allow any choice at all over who deals with an estate.

Exercising that choice requires careful handing. The Will writer needs to have complete confidence that their executor will carry out their wishes, which usually means having a good and objective understanding of family circumstances. It might also mean having to deal with a few of those elephants that have remained in the room. For many couples, when one of them goes, the family dynamics they leave will change.

The tasks for an executor can be both daunting and exacting. Their duties extend to registering the death and arranging the funeral; identifying every asset and liability as at the date of death including joint assets, sometimes to the nearest penny; obtaining reliable valuations of assets such as jewellery, shares and property; ensuring all income tax responsibilities have been met including filing returns; making sure that any inheritance tax liability is identified and can be paid on time; and arranging bridging finance if needs be. Only then can the executor call in the assets and use the proceeds to pay the debtors (in the correct order, of course), draw up a formal account of the estate and, finally, make distributions to the beneficiaries.

Few of us have one family member with all of the qualities needed to be both a competent and sympathetic executor, but two together are more likely to have those qualities. Similarly, few think that their families will fall out, yet somehow we all know plenty of examples where that has happened. Further, it can be hardest of all to address what happens if your chosen executor cannot or will not act, perhaps because they have not survived, or have lost mental capacity, or moved abroad, or simply feel it is too much for them to do.

For any but the simplest of estates, one of the best ways to ensure all goes smoothly and to avoid disputes is to choose multiple executors/trustees, and to consider a professional executor who is detached from the family.

The solicitor you have entrusted to advise you should have a detailed knowledge of your circumstances and any complicating factors, a clear picture of your assets, a full understanding of your intentions, and will have detailed and up-to-date knowledge of the legal and tax issues which will arise.

Like your executor, you must pick your advisor carefully. Get that right, and they should spend time just getting to know you, your family and your wishes. Then between them you should find your executors can be better together.