When someone passes away, it is necessary to distribute the assets of their estate in accordance with the terms of that person’s Will, or according to the laws of intestacy if they did not have a Will in place. The process can seem complex and can become a significant administrative burden but our specialist team at Stuart & Stuart will use their considerable experience and expertise to guide you through the administration and legal complexities
In Scotland, it is the role of the Executors to wind up the estate, which involves applying to the Sheriff Court to obtain Confirmation to the deceased person's estate, submitting an Inheritance Tax return, ingathering all of the deceased’s assets and distributing them. The process of appointing an Executor and distributing the estate will vary depending on whether a Will was in place.
This can be a complex process, which requires liaising with banks, insurers, estate agents and others. The key steps in the executry process are outlined below. While this can be a very daunting process for a family during a challenging time, our solicitors can deal with the day to day burden of administering an estate, ensuring that the process is as streamlined as possible.
Appointing an Executor
Generally speaking, there are two types of estates; testate, where a Will had been put in place, and intestate, where there is no Will. If there is a Will in place, it will usually name one or more Executors who will be responsible for distributing the estate. These individuals are known as Executors Nominate.
If you are dealing with an intestate estate, the Sheriff Court will appoint an Executor Dative following an application from the most appropriate person. We can advise you as to whether you can and should be appointed as an Executor Dative where the deceased person did not leave a Will and can deal with the application to the Court for the Executor Dative appointment.
Applying for Confirmation
Before the Executor can distribute the estate, it is necessary to obtain Confirmation (a process similar to “Probate” in England & Wales). This essentially means that you have to prepare an inventory of all of the deceased’s property and then apply to the Sheriff Court for authority as the executor to deal with the estate. You will then receive a document – known as the “Confirmation” which can be provided to banks, building societies, insurers and others to prove that you as the Executor have the right to deal with the estate.
Ingathering and Distributing the Estate
Once the Executors have received Confirmation, they can proceed to ingather the estate. This will involve writing to those holding the assets – such as banks – to ask for release of the funds held to the Executor or to instruct the transfer of the assets to the beneficiaries.
If there is a Will in place, it will set out how the estate is to be distributed, subject to certain legal rules. For example, regardless of whether there is a Will, a surviving spouse and children are entitled to claim “Legal Rights” which essentially amount to a percentage share of the moveable estate. The moveable estate can be made up of, for example, money, shares, cars and personal possessions. This is different to the heritable estate, which relates to property and land.
If there is no Will, the law sets out how the estate will be distributed. It is therefore important to ensure that you have a valid Will in place in order to be certain that your estate will be divided in accordance with your own wishes (subject to any Legal Rights a spouse or child might have), rather than under the provisions of the laws of intestacy.
Dealing with Assets Abroad
It is not uncommon now for people to own assets in different countries around the world, particularly as many clients have enjoyed holiday homes across the European Union (EU) and beyond. The EU Succession Regulation has had a major impact on how succession to assets situated in EU member states is governed and administered. Although the Regulation has only been in force since August 2015, we have already seen several estates affected by the new rules and have assisted clients to the successful conclusion of their loved one’s estates. We have also dealt with the Wills and estate planning for those who then inherit those assets, ensuring that cross-border issues are dealt with in advance of their death.
It might be possible to use the Confirmation issued by the Sheriff Court in Scotland to transfer those assets or to sell properties located in foreign countries. Sometimes, however, it is essential to have the Confirmation document resealed by the foreign Court, whereas an official translation of the Scottish Will and Confirmation will be sufficient in other countries. In some instances, families are faced with dealing with the local law and Courts of the country in which the property is situated. Our solicitors have dealt with assets in estates in different countries of the world, liaising with solicitors and Notaries in other states to achieve access to assets situated around the world, as well as ensuring that the tax reporting and payment is dealt with in the appropriate country.
Dealing with Scottish Assets for Foreign Estates
In the same way that many Scottish people own property abroad, it is increasingly common for foreign nationals to own houses and other assets in Scotland. The UK is made up of several legal systems and Scotland has its own rules in relation to the succession of property in Wills and rights in a deceased person’s estate. We can assist with obtaining access to Scottish assets for those situated abroad, liaising with solicitors in other countries or with families and Executors directly. To do so we would guide you through the Scottish process, including checking the validity of the Will and determining whether it is necessary to apply to the Sheriff Court for “Confirmation” (a process similar to Probate in England).
If it is necessary to obtain Confirmation, we can prepare the Court forms for you and assist with UK inheritance tax reporting for the estate. Once Confirmation has been obtained and the tax position settled, we can then deal with the transfer or sale of the property to the beneficiaries.
Contact our Executry Solicitors in Edinburgh, Bonnyrigg and Penicuik
At Stuart & Stuart, we are experts in the winding up of estates. Executry management is a complex area of law, but our private client practice in Edinburgh, Bonnyrigg and Penicuik has a wealth of expertise to lead you through this process.