When a loved one dies, their affairs will need to be organised and their assets distributed to their surviving relatives, according to either the terms of a Will or the intestacy rules. Although it is often referred to as probate (the term used south of the border), this process is called executry in Scotland.
It is often the case that close relatives or friends of the deceased will either be nominated in a Will or appointed by the Court to take on the responsibility of winding up the deceased’s estate. Those with this role are called executors and they are the deceased’s legal representatives.
Here we provide a brief overview of the role of executors in Scotland and when you might want to consider getting specialist legal advice and assistance with executry or probate. While it isn’t mandatory to get legal assistance to carry out this role, a specialist solicitor will help to ease the burden and smooth the executry process. For more information, please contact us.
What Does an Executor Do?
Once an executor or executors are identified, either in a Will or because they are next of kin, they will be responsible for administering the deceased’s estate. This often involves:
- Finding the Will – executors must find and use the original Will, which is usually in the deceased’s home or held by their solicitor or bank, or if there is no Will, it needs to be established that the deceased died intestate;
- Arranging the funeral – executors may have to register the death and arrange the funeral. If there is a Will, the deceased may have left directions for funeral arrangements.
- Compiling an inventory – identify and gather together all the deceased’s property, which includes houses and lands, belongings, bank accounts, shares or any other assets. All these must then be valued at the date of death and then listed in an inventory;
- Obtaining details of debts and liabilities – identify all the deceased’s debts, which usually include the cost of the funeral and any outstanding utilities bills;
- Discovering whether any taxable gifts were made – if the deceased made any gifts within seven years of their death, either cash or assets, these must be added to the value of the estate for the purposes of calculating inheritance tax. If these aren’t discovered or declared when inheritance tax is paid, HM Revenue & Customs (HMRC) may seek to recover the difference.
- Getting Confirmation (also known as probate) – executors must lodge the inventory and court forms to the court to be granted Confirmation (also known as probate). This is the legal authority to administer the estate;
- Paying tax and liabilities – once Confirmation is granted, executors can start to realise assets in order to pay tax and settle any of the deceased’s liabilities;
- Check whether legal claims have been made – under Scots law, spouses, children and cohabitants have specific rights to make a claim on the deceased’s estate, which they can elect over any legacy left them in a Will. If a claim or claims are made, the executor must settle these;
- Distributing the assets – what remains of the estate, after debts and claims have been paid, can then be distributed according to the terms of the Will or, if there is no Will, according to the intestacy rules;
- Recovering expenses – any expenses that executors reasonably incur, such as legal assistance with the executry process, can be recovered;
- Preparing a final statement – executors must compile a final statement that shows all the payments made out of the estate, evidenced by invoices, receipts or any other relevant document. This, along with any other relevant paperwork, should be kept somewhere safe.
As can be seen from the above, executors have many legal responsibilities. Sometimes this process can be complex, particularly if there isn’t a Will or the estate is complex.
When Should I Use a Specialist Executry Solicitor?
You might consider getting the assistance of a specialist executry solicitor in the following circumstances:
- The deceased died without a Will – when someone dies without a Will, their estate will need to be dealt with according to a specific statutory regime known as the intestacy rules. An executry solicitor will help you to understand these and ensure the estate is wound up according to the law;
- The estate is complex – if there is uncertainty about the extent of the deceased’s property, assets are situated abroad or the estate continues to generate income after the deceased’s death, an executry solicitor will help you to find, organise and value the estate for the purposes of getting confirmation and calculating inheritance tax. They will then also be able to assist you to realise assets, pay off liabilities and distribute the estate according to the terms of the Will or the intestacy rules;
- The Will might be contested – if there is any doubt as to the validity of a Will, either in terms of the document itself or because of its substance, an executry solicitor will help you prepare and, should court proceedings follow, provide you with representation;
- A claim might be made on the estate – if a surviving spouse, child or cohabitant is likely to make a claim on the deceased’s estate, it’s important to fully and properly deal with these when carrying out your duties. Any failure to do so could lead to a claim being made against you personally. An executry lawyer will help you process any claims and meet your legal obligations as an executor.
The above list isn’t exhaustive. Whatever the situation concerning executry you might face, our specialist solicitors are ready to help.
Wilson & Fish – Specialist Probate & Executry Solicitors
If you would like to know more the executry process, one of our specialist solicitors is ready to help. At Wilson & Fish, our expert lawyers have vast experience assisting and representing clients in all manner of succession law matters in Scotland. We regularly assist clients in the administration of estates, both large and small. If you need assistance with probate, please contact us for specialist legal advice and assistance.