PART II. POSSESSIONS, PROPERTY AND CHILDREN
This part of the booklet gives a guide to the Scottish law of succession. Succession law says what happens to someone's property when they die. Part V contains more information about succession.
This information is only a guide. If in doubt, you should take independent legal advice before doing anything. If you have limited means, you may be able to get legal advice from a solicitor free or at a low cost. You could also ask your Citizens Advice Bureau for advice.
Where the total value of possessions is small (see section 12) your local sheriff clerk will be able to help. You can find the details of your local Sheriff Court in the telephone directory, or online at http://www.scotcourts.gov.uk/. You should telephone to arrange an interview.
10. IS THERE A WILL?
A will normally says what someone wants to happen to his or her "estate" when he or she dies. An estate includes things like the person's property, money and possessions.
A will may also:
- Say what the person wished to happen to his or her body, for instance:
- whether he or she wished to be cremated
- whether he or she wished his or her body to be bequeathed to a hospital
- whether any of his or her organs were to be donated
- what sort of funeral he or she wanted.
- Appoint one or more people as "executors". Executors are representatives of the dead person. An executor deals with someone's estate when they die (for more information see section 11).
- Name a "guardian" to look after any children.
Finding the will
It is important to find any will(s) as soon as possible. Look amongst personal papers at home, in the bank, with the lawyer or with relatives. Whether or not the will is found, the next stage is the appointment of executors.
If there is no will, it is important to trace any relatives. A relative can be appointed as an executor to deal with the dead person's estate (see section 11 below).
If there is no will and no traceable relative, the property of the dead person falls by law to the Crown. For this purpose, the person who acts for the Crown in Scotland is the Queen's and Lord Treasurer's Remembrancer ( QLTR) who is based in the Crown Office in Edinburgh. You can find out more about the QLTR's role on the Crown Office website http://www.crownoffice.gov.uk. You can also find full contact details for the QLTR with other useful addresses at Part VI.
11. THE EXECUTORS
What is an executor?
An executor is a representative of the dead person. The executor must pay off any debts or taxes from the person's "estate", and then distribute it to the "beneficiaries" (the people who will benefit, or inherit). An estate is normally made up of someone's property, money and possessions.
Who becomes an executor?
An executor (or executors) may be named in someone's will. If no executor is named or if there is no will, your solicitor or the sheriff clerk will arrange for the court to appoint an executor called an "executor dative". An executor dative will normally be the surviving spouse or civil partner. If there is no such person, another person entitled to inherit from the estate may be able to apply.
What does an executor do?
An executor must:
(i) make an inventory (a list) of all the money, furniture, savings and any house or other property belonging to the person who died. This is known collectively as his/her "estate";
(ii) pay inheritance tax, if this is due. For deaths on or after 6 April 2004, inheritance tax is not in general payable unless the total value of the dead person's estate together with any property life rented and any gifts made within 7 years of the death exceeds £263,000. This amount changes over time. You can get further information and advice about inheritance tax from Inland Revenue Capital Taxes. You can find their details at Part VI;
(iii) obtain confirmation to the estate. Confirmation is the legal document which gives the executor authority to receive payments due to the estate and to make payments due on the estate. Confirmation may not be required in some small estates (see "Small Estates" below);
(iv) "in-gather" the estate (see below);
(v) distribute the estate to those entitled to it (see section 13 and part V).
Does an executor need a lawyer?
It is possible for an executor to handle an estate without any legal help, but they may decide to employ a solicitor to help them. Even if someone decides to do it without legal help, he or she may want to seek advice on specific points from a Citizens Advice Bureau or a solicitor. The executor's out of pocket expenses, including any lawyer's charges, are met from the dead person's estate.
Dealing with a large estate or one where a house or other property is involved can often be very complicated and time consuming. In the event of any mistakes being made, the executor is legally responsible. If an executor is in any doubt about his or her ability to carry out the correct procedures, or if there is any dispute, the executor is strongly advised to consult a solicitor.
In the case of a small estate (see section 12), a special simplified rules apply. This simplified procedure makes it easier for an executor to deal with the estate without taking legal advice. However, the executor is still legally responsible for any mistakes. The executor's work is quite complicated and time consuming, even when dealing with a small estate.
In-gathering the estate
The confirmation is your authority to receive payments from the banks, insurance companies and other organisations, institutions or persons who have property or money belonging to the dead person. You will need to produce the confirmation to obtain payments.
Where there are many items in an estate situated in different places this can slow up the process and the sheriff clerk will, if asked, provide for any individual item a certificate of confirmation which will serve the purpose of the full confirmation for that item. A small fee is payable for any certificate.
12. SMALL ESTATES
What is a small estate?
All estates with a total (gross) value of less than £30,000 are classed as small. This figure will change from time to time. You should check with your local Citizens Advice Bureau or with the sheriff clerk what the current limit is. You should note that confirmation need only be obtained if required by a fund holder, for example a bank.
Confirmation without a solicitor
If you are the executor of a small estate you may choose to employ a solicitor to get confirmation from the court, or you may obtain confirmation without a solicitor. If you decide to obtain confirmation without a solicitor, there are special rules in place and the sheriff clerk will help you.
The advantage of doing it without a solicitor is that you avoid paying solicitor's charges. You will only need to pay the statutory confirmation fee which must be paid before confirmation is issued. On the other hand, even if you obtain confirmation without a solicitor, you may still require a solicitor to assist in interpreting any will and dividing up the estate.
You should note that after confirmation to a small estate has been obtained, the sheriff clerk cannot assist the executor any further.
If you wish to obtain confirmation without a solicitor, the sheriff clerk will help you to prepare the documents. You should consult the sheriff clerk, where the deceased last resided early on to ensure that you are collecting the correct information. You should telephone or call at your local sheriff clerk's office to arrange an appointment.
The procedure then varies according to whether or not there is a will.
If there is a will
If there is a will, you should go to the sheriff clerk's office and take with you:
- The will;
- Personal details of the dead person and his or her family;
- A full list of the estate and its value as it stood at the date of the death including any interest, dividends or bonuses to be added to any bank accounts, stocks and shares or insurance policies;
- The certificate of death.
The sheriff clerk will complete the necessary forms, and if no further enquiries are necessary will issue confirmation within a few days.
If there is no will
If you are applying to be appointed executor (see section 11) you should provide the sheriff clerk's office with the same information as that required where there is a will. The process of confirmation is the same as when there is a will, except that you may need to get a "bond of caution" (pronounced kay-shun).
A bond of caution is a guarantor's agreement that the executor will carry out his or her duties correctly. You would normally get one from an insurance company. It insures against losses in the handling of the estate. A company will charge a fee for this. You will be asked to provide proof of your identity and of your relationship with the person.
The sheriff clerk will advise you about this.
After getting confirmation
After you have obtained confirmation to the small estate, you will need to "in-gather" the estate (see Section 11) then distribute it to those legally entitled (more about distributing the estate at section 13 and Part V).
13. DISTRIBUTION OF PROPERTY AND POSSESSIONS
A. If there is a will
The dead person's property and possessions will be distributed in accordance with his/her wishes, by executors, after confirmation has been obtained, subject to payment of the "legal rights" due to his or her spouse, civil partner and children. You can read more about legal rights in Part V.
The executor should not distribute any of the estate to those entitled to it until a period of six months has passed since the date of the death. This is to allow persons or companies with a claim on the estate to make their claim known.
After that period, the executor may distribute the estate without having regard to any possible claims that he or she has not been told about. If any creditor or beneficiary presses for payment during the six month period a solicitor should be consulted.
Challenging the will
A will can be challenged on a number of grounds, for example:
- if the person was legally incapable of making the will (for instance, he or she did not understand the effects of making the will)
- if the person was improperly influenced by another person when making the will.
If you wish to challenge a will, you should consult a solicitor.
Whatever the will says, the surviving husband, wife, civil partner or children can, if they wish, claim "legal rights" from the estate. Part V explains this in more detail. If you wish to claim legal rights, you should tell the executor.
B. If there is no will
If someone dies and does not leave a will, the law says how an estate should be divided. Part V explains the way that an executor must distribute such an estate.
14. THE HOME
If you are living in a home which the dead person owned or rented:
- Do not move out of the home without getting legal advice about your rights.
- Do not let (rent out) the whole or part of the home or take in a lodger without getting legal advice on whether the agreement with the building society, Council or landlord allows this.
- Contact the building society, the landlord or Council to arrange how the mortgage or rent should be paid in future.
- Find out if there is any insurance policy covering the mortgage and if so inform the insurance company of the death.
Debts are paid out of the dead person's estate. They must be settled before an executor can distribute any of the estate to beneficiaries. The executor must give six months for creditors to make claims for the person's debts before distributing the estate, otherwise the executor may be legally liable for unpaid debts. The executor should check gas, electricity and telephone accounts, any firm where the person had an account or a credit, hire purchase or rental agreement, and should normally advertise to invite creditors to make claims.
If the debts are greater than the assets of an estate, the executor should seek legal advice. There are complicated rules for paying out what assets there are to the various creditors.
Do not be rushed into parting with goods before taking legal advice. Hire purchase goods cannot be repossessed after a third of the purchase price has been paid, unless the creditor gets a court order.