The Legalities of the Executry Process in Scotland
Dealing with the Will of a loved one
When a loved one dies, we’re often asked: what happens now?
At Innes & Mackay, our attentive and sympathetic team have an abundance of experience in supporting you through this difficult period and providing sensitive legal advice.
We’ll guide you through the entire process – every step of the way.
Step 1: Meet with us
One of our team will meet with a family member, executor or friend of the person who has died – often after the funeral has taken place.
Those attending the meeting should bring the death certificate with them.
If possible, also bring any paperwork in respect of the late person’s assets and debts, for example, bank statements, letters from investment companies and share certificates.
At the initial meeting, we’ll discuss the terms of the Will.
We’ll gather information regarding family members (e.g., is there a surviving spouse, civil partner or children).
We’ll also try to obtain as clear a picture of the late person’s financial position as possible.
If a person dies without a Will, they are said to be intestate. Please read our guidance on what happens when there is no will.
Step 2: Appoint an Executor
Usually, a Will will name an executor.
It’s the executor’s responsibility to obtain information about the estate and to distribute funds in line with the Will and in terms of the law.
If a person dies without a Will, it’s necessary to appoint an executor through an application to the Sheriff Court. We can prepare this.
Legislation specifies who is entitled to be appointed as executor (e.g., if there’s a surviving spouse or civil partner, they have priority to be appointed).
The executor will usually instruct a solicitor to manage the administration of the estate. However, the executor retains responsibility and is required to sign any paperwork.
The executor is our client and our instructions come from the executor even if the executor is not a relation of the person who has died.
Step 3: Value the Estate
Once the executor is in place, we’ll write to the relevant financial institutions and/or instruct a surveyor to obtain values of all property as at the date the person died.
This process 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 need to be prepared and submitted to HM Revenue and Customs.
Step 4: Apply for Probate/Confirmation
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 to the Sheriff Court. It shows the value of all of the assets owned by the deceased as at the date they died less debts owed.
Confirmation gives the executor authority to deal with the estate of the deceased.
Step 5: Write to Banks
Once Confirmation has been obtained, we’ll write to the banks to close accounts or transfer assets into the names of beneficiaries.
Step 6: Prepare Final Account
We’ll then prepare a final account that details all funds in and out of the estate.
This will also show any fluctuation in value of assets, for example, funds may have earned interest in the period between the date of death and the date of distribution.
Step 7: Distribute Assets
Once the executor has approved the account, we can distribute funds.
This will either be in accordance with the terms of Will or in terms of the legal rules of succession, depending on whether the deceased had a Will or not.
Legal Rights may also affect the distribution of the estate.
This is a feature of Scots law making it not possible to completely disinherit a spouse or children.
Legal Rights can be claimed whether the deceased died with or without a Will and it’s the executor’s responsibility to notify family members of their right to claim.
Executors won’t usually distribute funds until at least six months have passed from the date of death. The executor is personally liable if debts come to light after the distribution of funds.
Innes & Mackay can advise you of who will be due to inherit from your estate – with or without a Will – and we’ll ensure we progress the executry process as quickly as possible.
Specialist Executry and Probate Lawyers Inverness, Highlands, Scotland
Innes & Mackay know that the Executry process can be complicated and we understand the problems clients face in attempting to follow the Executry rules. The process can involve a lot of paperwork and talking to parties who money is owed to or from.
We know the responsibilities of being the Executor of a loved one’s Will can feel overwhelming at an already distressing time.
We’re experienced in helping Executors complete their job in administering a loved one’s estate, and in advising families if a loved one has died without a Will.
We will relieve you of much of the burden you’re feeling and guide you through the process as smoothly as possible.
For help with the legal process after the death of a loved one, call us on 01463 232 273.