Handling the death of a loved one is a highly emotional and stressful experience. This stress may be further heightened if you are also appointed as an Executor of the deceased’s estate. This article will look to explain some of the key points involving winding up your loved one's estate in Scotland. For personalised legal advice, get in touch with our team of lawyers today.
What to do after a death
What to do after death will depend on the circumstances surrounding your loved one’s death, specifically, whether they died at home, in the hospital or from unforeseen circumstances. Nevertheless, certain duties will be the same regardless of the manner and location of the death. For example, any death which occurs in Scotland must be registered within eight days of the death itself. This can be done at any registration office in Scotland regardless of the deceased’s domiciled region.
A funeral director will need to be contacted to make arrangements for the deceased’s body. It is worth investigating whether the deceased had a pre-paid funeral plan, whether or not they were an organ donor, or if they died with or without a Will. Distribution of the deceased’s estate places some importance on the latter.
Duties of an Executor
An Executor is someone who was appointed by the deceased to administer their estate. If there is a written Will, there will be an Executor appointed to administer the estate. On the other hand, if there is no Will then the Executor will be appointed by applying to the Sheriff Court.
There are various duties the Executor has to take into consideration, a general overview will be given below:
The Executor is responsible for gathering paperwork and documents relevant to the death of the loved one, and notifying the relevant governmental departments about the death. It is important to find out whether there are any debts owed by the deceased or if they were owed any money themselves.
The Executor must ascertain the value of the deceased’s assets, most commonly any money in bank accounts as well as moveable and immoveable property. If there is any Inheritance Tax (IHT) due, the Executor must make arrangements for this to be paid
Bond of Caution
If a person dies without having a Will, the Executor-dative, who has been appointed by the Sheriff Court, requires to obtain an insurance bond known as a Bond of Caution. A one-off premium is payable to an insurance company offering Bonds of Caution, which is based on the value of the estate. A Bond of Caution is required before the Sheriff Court will grant Confirmation of the estate. The Bond of Caution is required to protect beneficiaries and creditors against an Executor improperly distributing the estate.
Confirmation is legal documentation from the court giving the Executor authority to access money and property belonging to the deceased. Without confirmation, the Executor cannot sell any property or release funds from the deceased’s bank accounts.
To obtain confirmation, the Executor must provide an inventory list of all of the deceased’s assets (such as money and property) and send it to the local sheriff clerk’s office. It’s worth noting that the sheriff clerk cannot help you apply for confirmation for larger estates (those valued at more than £36,000), and therefore, legal assistance is recommended.
Gathering of estate
Once confirmation is granted, the Executor will gather assets. Usually, the Executor will set up a bank account in order to gather these assets. At this stage, any debts of the deceased will be paid. The Executor will also be liable for keeping accounts of their proceedings at this stage, showing any distributions made to beneficiaries, creditors and any outgoings in relation to taxes.
The Executor will finally distribute the estate in accordance with the Will. They will take into consideration the Legal Rights of the surviving spouse and children, if applicable, which apply regardless of the Will itself. In most cases, six months is an advisable time to wait until distributing the Will as this is the maximum time that creditors have to claim on the estate.
Time and costs involved
Selling property, gaining confirmation and dealing with beneficiaries can be a long and drawn-out process. Hence, it is important to remember that winding up an estate is not a swift procedure. As mentioned, you will need to allow at least six months to pass before fully winding up the estate. However, it may take longer depending on the size of the estate or its specific circumstances.
The cost of winding up an estate will depend primarily on two factors. Firstly, it is common to seek professional advice from solicitors or accountants with regard to the process. This will come with varying costs depending on the advice given and their specific fees.
Secondly, the court has charges put in place for examining inventory during the confirmation application. These fees vary on the value of the estate:
- Estates up to £50,000 – no fee.
- Estates between £50,000.01 and £250,000 – fee of £266.
- Estates exceeding £250,000 – fee of £532.
Contact our Executry Lawyers in Aberdeen & Stonehaven now
If you are dealing with the death of a loved one, the executry solicitors at James & George Collie can provide you with the legal support and guidance you need. Serving clients from our Aberdeen office, our friendly team of specialists will ensure that your loved one’s estate is handled correctly and swiftly.