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Wills, Estates and ongoing personal injury claims - The importance of an executor

Writing your Will is probably not something you like to think about but it is an essential task that you must complete. Rest assured, once done, a huge weight is lifted off your shoulders, knowing that you have made clear who should receive the contents of your estate when the inevitable occurs. However, appointing an executor to your Will is a crucial part of the process for many reasons, including court proceedings involving the deceased. This article explains why appointing an executor to your Will is so important. It does so by looking at personal injury claims related to the deceased and their estate.

What is the role of an executor?

When a person passes away, their Will must be executed. However, this is not as simple as passing on the deceased estate to those listed in their Will. Firstly, the deceased's affairs need to be organised, and then their wishes can be honoured in terms of who receives their estate. The executor of the Will carries out these tasks.

The role of an executor is a substantial responsibility and, therefore, only a role you would wish to give to someone you trust. An executor could be your family member or friend. Alternatively, you may wish to appoint a professional executor such as a law firm or a bank.   

What happens if no executor has been appointed during an ongoing personal case? 

An example of why appointing an executor to your Will is so important was recently highlighted in the Scottish courts regarding a potential personal injury claim for the deceased. The deceased’s husband wished to pursue a personal injury claim on her behalf relating to an incident that occurred before her death but was unrelated to it. However, he was not the executor of her Will, and she had not appointed one before she passed away.

What the law says

Whilst a husband as a surviving spouse does have a right to be appointed executor of the Will after a person’s death; their appointment is not automatic as they do not exclusively hold this right. Therefore, where you have not appointed an executor to your Will, you should not assume that your surviving spouse will automatically be granted that role. 

What happened in the case?

As the husband had not been appointed the executor to his late wife’s Will and had also not been appointed since her death, he was unable to pursue the personal injury claim on her behalf. If the deceased had appointed him as her executor to her Will, or if since her death he had been granted this title making him Executor Dative, he would have been able to pursue the personal injury claim on her behalf. 

The estate and personal injury claims 

It is clear that one reason it is important to ensure you have appointed an executor to your Will is in relation to pursuing a personal injury claim on behalf of the deceased. Personal injury claims are not included as part of the deceased’s estate. This means that it is also not taxable as part of their estate.

If the deceased’s death has been a result of a personal injury, it may be possible to claim damages for bereavement as a spouse. A claim for damages for bereavement is also not included as part of the deceased estate. 

There are situations regarding personal injury claims where the importance of an executor is highlighted as follows:

1. Making a personal injury claim on behalf of the deceased

Personal injury claims can be made on behalf of the deceased, either by being appointed this role by their late spouse or by being appointed after their death as an Executor Dative. In the case above, if the husband had been the executor of the Will, he could have made a personal injury claim on her behalf. This could be for an accident related to or unrelated to her death.

2. Continuing a personal injury claim on behalf of the deceased

Having an executor appointed to a Will is important if, for example, a person has begun a personal injury claim but not completed it. An executor of a Will can continue this claim once the person has passed away.

The executor is treated as though they are the victim of the claim and can, therefore, give instructions to the law firm acting on it. If an executor has not been appointed in the Will, once one is appointed as Executor Dative, they will be able to continue the personal injury claim. 

Contact our Private Client Solicitors in Ayr, Troon, Kilmarnock, Irvine and Glasgow

This article provides an overview of the importance of appointing an executor for your Will in relation to personal injury claims. If you require assistance regarding the appointment of an executor or another area of Wills, estates or personal injury claims, contact us for compassionate and comprehensive legal advice tailored to your individual circumstances. 

Call our team of experts today on 01292 289 584 or fill in our online contact form.

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