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WHAT TO DO AFTER A DEATH IN SCOTLAND . . .practical advice for times of bereavement |
| PART II. POSSESSIONS, PROPERTY AND CHILDREN The law on succession (ie what happens to a dead person's money and property) is very complicated. You should note that this booklet is a guide only. If in doubt, you should consult a solicitor before doing anything. Legal advice is available free or at a low cost for anyone with limited means. Ask your Citizens Advice Bureau to advise you how to get a solicitor's help. Where the total value of possessions is small (see section 12) your local sheriff clerk--whose address can be obtained from the telephone directory or your local Citizens Advice Bureau--will be able to help. You should telephone to arrange the interview. 10. IS THERE A WILL? A Will States what the person wants to happen to his or her money, property, possessions. May state what the person wished to happen to his or her body; whether he or she wished to be cremated or buried or wished his or her body to be bequeathed to a hospital; or whether any organs were to be donated; what sort of funeral was wanted. May appoint one or more people as executors, to be responsible for paying debts and dealing with money, property, and possessions. May nominate a person to act as a guardian to any children. Finding the Will It is important to find the will 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. 11. THE EXECUTORS What are executors? Executors are representatives of the dead person who pay off any debts or taxes and distribute the property and possessions to those entitled to them. Who becomes an executor? An executor may be named in the persons 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 executor dative) who will normally be the surviving spouse or, if there is no surviving spouse, the next-of-kin. What does an executor do? An executor must:
Does an executor need a lawyer? It is possible for executors to handle estates themselves, but they may decide to employ lawyers to do this. Even if doing the executory on their own, the executor may consider it to be advisable to seek advice on specific points from a Citizens Advice Bureau or a lawyer. The executor's expenses, including the lawyers charges, are met from the deceased persons 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. In these cases if the 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 small estates, special simplified procedures apply which make it easier for an executor to deal with the estate without consulting a solicitor (see section 12). The executor is still legally responsible for any mistakes, however, and even with small estates procedure, the executor's work is quite complicated and time consuming. 12. SMALL ESTATES What is a small estate? All estates with a total (gross) value of less than £17,000 are classed as small. This figure may be changed from time to time. You should check with your local Citizens Advice Bureau or with the sheriff clerk what the the current limit is. It should be noted that confirmation need only be obtained if required by a fund holder e.g. a bank. Confirmation without a solicitor If you are the executor of a small estate you may choose to employ a solicitor to obtain confirmation from the court, as with a larger estate, or you may obtain confirmation without a solicitor, in which case there are special procedures which provide for the sheriff clerk to help you. The advantage of doing it without a solicitor is that you avoid paying solicitors 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 advise the executor any further. If you wish to obtain confirmation without a solicitor, you are assisted by the sheriff clerk, who prepares the documents. It is advisable to consult the sheriff clerk 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 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 proceedings in the issue of confirmation are the same except that there may be a need to obtain a "bond of caution" (pronounced kay-shun), which is a guarantor's agreement from an individual or from an insurance company that the executor will carry out his or her duties correctly and 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 on any need or procedure required. After confirmation to the small estate has been obtained, you will need to: In-gather the person's property. 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. Distribute the property to those legally entitled to receive it (see section 13). You may wish to consult a solicitor before doing so; if there is any doubt, a solicitor should be consulted. 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/her spouse and children. 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 the claim known. After that period the executor may distribute the estate without having regard to any possible claims which have not been intimated. 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 insane when it was made, if the children were born after the will was made, if the person had been improperly influenced by another person when making the will. If you wish to challenge the will, you should consult a solicitor. Legal rights Whatever the will says, the surviving husband or wife or children can, if they wish, claim "legal rights" to a proportion of any property excluding house and land (see B(ii) below). If you wish to claim legal rights, you should inform the executor. B. If there is no Will The estate will be divided according to specific legal rules.
The Scottish Office Home Department have published a leaflet Rights of Succession which explains this in more detail. It can be obtained, free, from your local Citizens Advice Bureau, or from The Scottish Office Home Department, Division IA, V1 Spur, Saughton House, Broomhouse Drive, Edinburgh EH11 3XD telephone: 0131 244 3581. You can also seek advice from a solicitor. 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 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. 15. DEBTS Debts are paid out of the person's own estate. Relatives do not have to pay them out of their own income or savings. 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 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 inviting 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. |