Wilson & Fish are an experienced executry (probate) legal practice based in Scotland. Our expert executry lawyers specialise in administering and winding up estates.
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. Here, we have outlined the key costs involved in administering the estate.
Appointing an executor if there is no Will
An executor is normally named within the deceased's Will. However, it is not uncommon for an executor not to be named, or for the estate to be ‘intestate’, meaning the deceased has died without leaving a Will. In such circumstances, the law sets out how the estate should be distributed.
Where there is no Will, a petition should be lodged with the Sheriff Clerk to appoint an executor, called an executor-dative, the expenses involved can be met by the estate. This appointment will allow the executor-dative to administer the estate accordingly.
The executor dative will usually be the surviving spouse or civil partner or children of the deceased. However, if this is not the case, another person with an entitlement to inherit from the estate can potentially make an application to be appointed as the executor-dative. Our solicitors can provide you with the highest quality legal advice in such circumstances.
To apply for Confirmation, ascertain the amount of inheritance tax due on the estate and to determine whether all legacies detailed in the Will can be met, the executor will need to compile an inventory of everything which forms part of the estate. This includes valuing all possessions, money and property which form part of the estate. This can be a lengthy process as it is heavily reliant on different companies and organisations getting back to you.
The value of each item is calculated at the date of death, and professional advice is necessary in respect of many of the items in the estate which will incur costs but these can also be met from the estate. For example, a surveyor will generally be required to determine the value of the deceased’s home. Shares are calculated according to their ‘quarter up' value (the lowest share price on the date of death plus one-quarter of the difference between the lowest and highest price). Specialist valuations may be required in respect of artwork or jewellery. We can quickly and efficiently engage relevant professionals to value assets in an estate. Therefore, it is a good idea to get advice from our expert solicitors who will be able to guide you through the, potentially complicated, process.
Applying for and obtaining Confirmation
In many cases, before a bank or building society will release any money to the executor, Confirmation is required. Confirmation is a legal document granted by the court, giving the executor the legal authority to distribute the money or property according to the Will.
The costs for acquiring Confirmation depend on the type of estate the application is referring to. For example, the total estate and how many certificates will be required to be provided to different banks, building societies and insurance companies and these costs are also met by the estate.
Where there is a Will and the estate is less than £36,000, obtaining Confirmation is not a highly complex process. The court will verify your identity to approve the appointment as executor and your local Sheriff Court should be able to help you complete the forms for the application.
However, in cases of a large estate (exceeding £36,000), the Sheriff Court will not be able to assist executors in applying for Confirmation. Therefore, due to the complex legal issues that can arise, we highly recommend you get access to professional legal advice.
Realising Assets – Sale, Transfer and Uplift
Once the executors have obtained Confirmation, uplifted any money or other property belonging to the deceased from the holder (such as the bank) and settled the debts of the deceased. The final stage of the process is to distribute the remaining estate according to the Will or the law if intestate. This can be a very complicated area and legal guidance is highly recommended.
Transferring ownership of the assets from the estate to the beneficiaries is not always straightforward. Whilst some personal possessions can simply be delivered to the legatee, transferring the deceased’s home into the name of their beneficiary will require legal documentation. If the home is to be sold to pay the legacies in cash, the estate will incur the costs of marketing and selling the house. The sale or transfer of shares, insurance policies, bonds, and certain other assets will also involve detailed administrative procedures and expenses.
It is important to keep a detailed record of all valuation and distribution costs so that these can be met by the estate.
Contact our Executry & Probate Lawyers Glasgow, Scotland
Calculating these costs accurately is time-consuming and complex. If you would like to discuss how our solicitors can assist you, please contact us by telephone 0141 222 7951 or fill in our online enquiry form.