Losing a close relative is always a very difficult and emotional time. As well as making the funeral arrangements the family are likely to have to deal with the winding up or administration of their loved one’s estate.
If the deceased left a Will an Executor or Executors will be nominated. An Executor is the person or persons responsible for fulfilling the deceased’s wishes, engathering and distributing assets and settling outstanding liabilities including the funeral account.
Discovering that you have been appointed as an Executor can be extremely daunting. The position of Executor carries many obligations, duties and rules. Yes you can wind up an estate without professional assistance but this can lead to difficulties and be very stressful for the Executor. This is why the majority of people appoint a professional to guide them through the whole procedure from applying to the Court for Confirmation, calculation and paying any inheritance tax and distributing the Estate to the nominated beneficiaries. The good news is that any reasonable professional fees will be paid from the Estate.
It is important that appropriate enquiries are made to establish whether the deceased left a Will to ensure that their wishes are met and that nobody who is entitled to a Legacy is missed out. Your solicitor will be able to guide you as to how best to do this. The Will may be with the deceased’s belongings, held by the Bank or with another solicitor. Unless the Will specifies to the contrary it is not necessary for the Executor to instruct the solicitor who prepared the Will to administer the Estate.
Certain people, not actually mentioned in the Will, such as a spouse, children or issue of any predeceasing children may still have a valid claim on the Estate. This entitlement is known as Legal Rights. Your solicitor should be able to assist you with this.
Many people are surprised to learn that the terms of the someone’s Will can be varied after they have died if all the potential beneficiaries who are affected agree. If this is done within two years of death it can be a very efficient and legal way of avoiding inheritance tax.
Unfortunately, many people will not have left a Will and in these circumstances an interested party, usually the closest relative, will need to apply to the Sheriff Court to be appointed as an Executor.
If there is no Will the law sets out a very strict set of rules which specify exactly how the Estate is to be distributed. In the absence of any living relatives the Estate will fall to the Crown as ultimus haeres
Irrespective of whether there is a Will or not, unless the estate is very small, the Executor will probably require to apply to the Court for Confirmation (in England this is known as Probate). This is the legal document which provides the Executor with the authority to engather the Estate. Without the Confirmation most Banks and financial institutions will not allow the Executor to close accounts or transfer investments; There are exceptions for very small estates and your solicitor should be able to tell you if Confirmation is required.
It should be noted that the Court will not grant Confirmation to the Executor unless the Sheriff is satisfied that any Inheritance has been paid to the Inland Revenue. For larger Estates the application for Confirmation must be lodged within strict time limits and the Estate must pay Inheritance Tax by the end of the sixth month after the person died. Failure to do so is likely to result in Penalties and interest being applied by the Inland Revenue.
At WGM Legal we have over 30 years of experience advising Executors and winding up Estates. We are wholly transparent with our fees and unless we have quoted a fixed fee each and every file is sent to an independent Auditor to assess the appropriate fee to be charged to the Estate.
Every Executry will be undertaken by a qualified solicitor regulated by the Law Society of Scotland.
For a free informal chat or an immediate response please call us on 0141 616 6655.