We are often asked what happens next from a legal perspective when a loved one passes away. Here at Innes & Mackay, our attentive and sympathetic team have an abundance of experience in supporting you through this difficult period providing sensitive legal advice.
The first step would be for a family member, executor or friend of the person who has passed away to meet with one of our solicitors. This is often after the funeral has taken place. Those attending the meeting should bring the death certificate with them together with any paperwork available in respect of the late person’s assets and debts (such as bank statements, letters from investment companies and valuations of shareholdings). We try to obtain as clear a picture of the late person’s financial position as possible as well as gathering information regarding their family members (e.g. have they a surviving spouse/civil partner or children).
If a person passes away with a Will they are said to be testate. At the initial meeting we will discuss the terms of the Will. Usually a Will will name an executor(s). An executor is person or company appointed to administer the estate of the person who has passed away. It is their responsibility to obtain information regarding the estate and to distribute this in terms of the Will or in terms of the law.
If a person passes away without a Will they are said to be intestate. In this situation it is necessary to appoint an executor(s). We can prepare the application to the Sheriff Court. Legislation specifies who is entitled to be appointed as executor (e.g. if there is a surviving spouse or civil partner then they have priority to be appointed). If the estate is intestate, then depending on the value it may be necessary to obtain a Bond of Caution. This is an insurance policy which is to protect against incorrect distribution of the estate.
It is often the case that the executor will instruct a solicitor to attend to the administration of the estate. However the executor retains responsibility and requires to sign any paperwork. The executor is the solicitor’s client and our instructions come from the executor even if the executor is not a relation of the person who has passed away.
Once the executors are in place, we will then write to the relevant financial institutions and/or instruct a surveyor to obtain values of all property as at the date the person passed away. This can take time particularly where the assets are complicated or of high value.
If Inheritance Tax is due in respect of the estate, forms will require to be prepared and submitted to HM Revenue and Customs.
Depending on the value of the estate, it may be necessary to apply for Confirmation (you may have heard this referred to by the English term of Probate). This is an application made by the executor(s) to the Sheriff Court showing the value of all of the assets owned by the deceased as at the date they passed away less any debts owed. We can prepare this for you. Confirmation gives the executor(s) authority to deal with the estate of the deceased.
Once Confirmation is obtained we will write out to the banks etc to close accounts or transfer assets into the names of beneficiaries if relevant.
We will then prepare an executry account which shows the flow of funds in and out of the estate. This will also show any fluctuation in value of assets (e.g. funds may have earned interest in the period between the deceased passing away and when funds are ingathered).
Once the executor(s) has approved the executry account, we will distribute funds. This will either be in accordance with the terms of Will or in terms of legislation whereby the law specifies who is entitled to inherit an estate if the deceased did not make a Will. The distribution of the estate may also be affected by Legal Rights. This is a feature of Scots law whereby it is not possible to completely disinherit a spouse or children have a right to claim against your moveable property (i.e. everything apart from houses and land). Legal Rights can be claimed whether the deceased passed away with or without a will. Where relevant it is the executor’s duty to notify children and spouses of their right to claim Legal Rights however, we can advise in relation to this.
Contact our Wills Solicitors Inverness, Highlands in Scotland
We will progress an executry as quickly as possible however the process can take time particularly if the estate is complicated. It is also customary for executors to not distribute funds before 6 months have passed since the deceased passed away as if debts subsequently come to light then they will be personally liable. Contact our wills solicitors for more information.