Executry and Probate can be complex and confusing, especially if it is the first time you are dealing with these matters. Here we answer the most common asked questions in relation to Executry and Probate in Scotland.
At Wilson & Fish Solicitors, we specialise in Estate Administration, Probate, Confirmation and Executry, so please contact us if you need expert advice on any of these issues.
- What do you need to do when someone dies in Scotland?
- Is Confirmation different from Probate?
- Why use a solicitor to obtain Confirmation?
- Do I need a solicitor to get Confirmation?
- How long does it take to wind up an estate?
- If there is no Will, who inherits?
- What are “Prior Rights” to an estate?
- What are “Legal Rights” to an estate?
- Do I need to use the solicitor who holds the Will to wind up an estate?
- What are an executor’s duties?
- Can I be appointed executor?
- What tax is payable by an estate?
- When is Inheritance Tax payable on an estate?
- How is Inheritance Tax calculated on an estate?
- What is a Bond of Caution?
- Do I need a Bond of Caution to wind up an estate?
- How much will it cost to obtain Confirmation and wind up an estate?
- Why use a solicitor to wind up an estate?
- What are the costs involved in administering an estate?
Dealing with the death of a loved one is a highly stressful and emotional experience, especially when you have been appointed executor of an estate. You can read more about what to do when a loved one dies here.
2. Is Confirmation different from Probate?
Probate is similar to Confirmation. In Scotland the court grants Confirmation and in England Probate. People in Scotland often refer to Confirmation and Estate Administration as Probate.
“Confirmation” is a legal document, granted by a court, which allows the executor(s) to deal with the deceased person’s estate. The rules relating to Confirmation can be complex, depending on the size of the estate and whether there is a Will, and a solicitor will be best placed to help you obtain Confirmation and deal with court procedures efficiently. Read more.
You are not legally required to use a solicitor to obtain Confirmation where there is a valid Will. However, if there is no Will and a Bond of Caution is required you will need to instruct a solicitor. Advice from a specialist Executry and Probate lawyer is beneficial in any case, as it will help you work through the complex legal issues and ensure you follow the correct procedures. Read more.
This will depend on the number of people due to inherit, the size and complexity of the estate, and any Inheritance Tax issues. Read more.
This depends on whether the deceased has a spouse, civil partner, children or other living family members. The relations are prioritised according to legal rules, called the rules of Intestacy, which come into play when there is no Will. It is important to note that unmarried partners do not automatically inherit anything under these rules. To ensure your intentions are given effect after your death you should write a Will – otherwise, the legal default rules will apply. Read more.
Where no Will has been left, a spouse or civil partner has prior rights in the deceased person's estate, which entitles them to inherit the deceased’s house in which the spouse or civil partner was resident at the time of death (as long as it is valued at less than £473,000), a portion of the furniture and furnishings (up to the value of £29,000) and a cash sum (£50,000 if there are children or £89,000 if no children). Read more.
Where no Will has been left, the spouse or civil partner and children of the deceased have automatic Legal Rights from the deceased’s “moveable” estate (everything except land and buildings). Read more.
No. If you are the executor you can appoint a different solicitor. Even if the executor named in the Will is a solicitor or a firm of lawyers they will often be willing to resign to allow the beneficiaries to instruct another firm of solicitors. Read more.
10. What are an executor’s duties?
The executor’s main duties are to obtain Confirmation, pay debts and taxes due, and wind up the estate (i.e. distribute the deceased’s assets between those who are to inherit them). Read more.
If the deceased person has named you as an executor in their Will, the court can simply check your identity and confirm the appointment.
If no executor has been named in the Will or the deceased left no Will, your solicitor can help you arrange for the court to appoint you as executor-dative. For larger estates, you must also obtain a Bond of Caution, dealt with further below. Read more.
Inheritance Tax may be payable on larger estates (those valued at over £325,000). Certain transactions made during the deceased person’s lifetime may also be subject to Inheritance Tax (in particular, gifts and trusts made in the seven years before death). Read more.
Inheritance tax must be paid before the application for Confirmation. Read more.
14. How is Inheritance Tax calculated on an estate?
Generally, this is charged at 40% of anything above the Nil Rate Band threshold (£325,000.00/£650,000.00), although the threshold can be increased if the home is left to children or grandchildren. Further, there are various exemptions, for example gifts made to a spouse or civil partner.
A Bond of Caution is an insurance policy that protects the beneficiaries against mistakes made by the executor when distributing the deceased’s estate. Read more.
A Bond of Caution is necessary where an executor has been appointed by a court, rather than named in the Will. There are some exceptions to this, for example where the value of the estate is less than £36,000 or the whole estate is inherited by a surviving spouse or civil partner. Read more.
17. How much will it cost to obtain Confirmation and wind up an estate?
Fees for Confirmation and winding up will depend on the make up of the assets and complexity of the estate. At Wilson & Fish, our fees are never based on the value of the estate, but on the estimated work and time involved in completing the winding up of the estate.
Dealing with estates, whether small or large, is complex and time consuming. As an executor, you have certain legal duties and responsibilities, and you may incur liability for mistakes made when dealing with the estate. Completion of the court forms is complicated and requires a Declaration to be drafted to reflect the terms of the Will. A solicitor will ensure you follow the correct procedures and will help you deal with any disputes that may arise.
Executors are, in our experience, understandably concerned by the legal complexity of the winding up process as well as the prospect of incurring costs associated with the estate.
Contact our Expert Executry and Probate Solicitors Glasgow, Scotland
Based in Glasgow and serving Falkirk, Edinburgh, Stirling, Livingston, Bathgate, the whole of Scotland and overseas, our team of Executry solicitors are here to make your life easier and are committed to fair pricing, which is clear and transparent to our clients. Call us on 01412227951 or contact us online.