Guide to Executries (Scotland)
When a family suffer a bereavement it is a very distressing time and they may find the legal process difficult and often bewildering. The following provides an outline of the legal procedures which must be followed to allow the deceased’s Estate to be wound up and distributed to the beneficiaries. The procedure differs depending on whether the deceased left a Will or not.
Testate Estate – where there is a Will
If the deceased has left a Will the Estate is termed a “Testate Estate”. The Will normally appoints Executors. The Executors are the representatives of the deceased and are responsible for the winding up of the Estate. As such it is the Executors who become our clients and it is from them as legal agents that we take our instructions. The first task is to compile an inventory of all the assets and liabilities of the deceased’s Estate. This involves liaising with banks, building societies, investment providers, lenders, insurance companies, utility providers and so on to ascertain the value of the asset or the debt due to or by the Estate. Some assets including property, furniture, jewellery and antiques may require to be formally valued. Obtaining this information can be a very timely exercise, however, upon receipt of all the information we are in a position to frame the application for Confirmation.
We will then calculate from the information received whether Inheritance Tax will be due on the Estate and discuss payment options. Inheritance Tax must be paid before Confirmation can be applied for and also must be paid within six months of the date of death, or interest will accrue.
If no Inheritance is due the application for Confirmation can be lodged with the Sheriff Court.
Confirmation is the legal document which gives the Executors of the Estate legal title to deal with the assets and to distribute them in accordance with the provision of the Will.
Small Estates totalling less than £30,000 can be dealt with directly through the Sheriff Court. More information on this can be obtained from your local Sheriff Court or at www.scotcourts.gov.uk.
Once Confirmation has been obtained we will request release or transfer of the various assets in the Estate. If the deceased’s house is to be sold we can offer an Estate Agency service and deal with the conveyancing.
Upon receiving the assets due to the Estate, all debts must be paid and then the Estate can be distributed in terms of the Will.
Intestate Estate – where there is no Will
In this instance the first task is to establish who has the right to be appointed as Executor. We must then apply to the Sheriff Court to appoint the Executor(s) formally by way of an Initial Writ. Once the Executor has been appointed the procedure mirrors that of a Testate Estate.
Where it is a family member other than a Spouse of the deceased who has been appointed as Executor, a Bond of Caution would be required. A Bond of Caution is an insurance policy to protect the Executors against any future claims on the Estate.
There are rules regarding distribution of an Intestate Estate. It is not the case that spouses or civil partners automatically inherit everything, although they do have certain rights. Children also have rights. The result of this can sometimes be surprising. More information can be found here.
In both Testate and Intestate Estates, accounts and records of payments made and funds received are kept. We will prepare final accounts for the Executors to approve before distributing the Estate in terms of the Will.
A question often asked is how long it will take until the Estate can be distributed. It is impossible to give an exact answer. Under Law Society guidelines we are advised not to distribute an Estate until at least six months from the date of death have passed. If an Estate is small and uncomplicated then it may be possible to distribute within a reasonably short amount of time, however, larger Estates can take up to a year to be wound up and indeed if an Estate is complex it can take even longer than this.
Making a Will