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What to do After a Death

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, or you can ask your Citizens Advice Bureau to advise you. 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?

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 person'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 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:

(i) make an inventory (a list) of all the money, furniture, savings and any house or other property belonging to the person who has died--collectively known as his/her estate;

(ii) pay inheritance tax, if this is due. For deaths on or after 6 April 2000. Inheritance Tax is not in general payable unless the total value of the deceased's own estate together with any property life rented and any gifts made within 7 years of the death exceeds £234,000. This threshold changes over time.

Further information and advice can be obtained from the Capital Taxes Office, 16 Picardy Place, Edinburgh EH1 3NB, telephone: 0131 524 3000

(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 section 12);

(v) distribute the estate to those entitled to it (see section 13).

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 lawyer's 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 £25,000 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 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, 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.

(i) Prior rights

These are the surviving husband's or wife's rights to--(a) the house (up to a value of £130,000); (b) furniture in the house (up to £22,000); (c) a payment of £35,000 if there are children, £58,000 if there are not. These figures may be changed from time to time.

(ii) Legal rights

After prior rights have been dealt with, a surviving husband or wife and children have certain "legal rights" to a proportion of the "moveable estate"-- that is, all things such as money, shares, cars, furniture and jewellery.

(iii) Rules for the remainder

After prior and legal rights have been dealt with, the remainder is given to surviving relatives according to a strictly laid-down sequence--for example any children have first claim; if there are no children half goes to the parents or parent and half to the brothers and sisters; if there are no children or parents all goes to the brothers and sisters; and so on.

The Scottish Executive Justice 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 Executive Justice 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.

PART III. SOCIAL SECURITY HELP FOR THOSE WHO ARE LEFT

16. YOU MAY QUALIFY FOR HELP FROM SOCIAL SECURITY:

• as a widow or widower

or if you have established or can establish under Scots law a marriage by cohabitation with habit and repute.

This includes widows' benefits, and extra benefit or pension that both widows and widowers may get on their husband's or wife's National Insurance record

Social Security may also be able to help if:

• you are responsible for arranging the funeral (get claim pack SF 200 from a Social Security office)

• you have a low income (you may also get help with NHS health costs)

• you are bringing up a child on your own

• your baby was stillborn

• the deceased was a war pensioner.

For more details of benefits get leaflet D49 S What to do after a death in Scotland: Social Security Supplement from a Social Security office or Registrar's office.

PART IV. WHAT ELSE HAS TO BE DONE?

This part includes examples of the kinds of things which may have to be done. It is not a comprehensive list covering everyone's individual circumstances.

You should return

• Order books, payable orders, or Giro cheques to the social security office. This applies also to a child benefit book which includes payment for a child who has died. Orders should not be cashed after the death of the person.

• The person's passport to the United Kingdom Passport Agency, 3 Northgate, 96 Milton Street, Glasgow G4 0BT. You should indicate in a covering note whether you wish the passport to be cancelled and returned to you or whether you are content for it to be cancelled and disposed of by Passport Agency staff.

• The driving licence to DVLA, Swansea, SA99 1AB with a covering letter

• The log book of a car, for the change of ownership to be recorded.

• A season ticket, and claim any refund due.*

• Membership cards of clubs and associations, and claim on unexpired memberships.*

• Library books and tickets.

Enclose a note of explanation with the date of death with each of these documents.

*Any sums recovered must be included in the inventory (see section 11).

You should tell

• The social work department of the death if the person had been getting meals on wheels, home help, or had an appliance or aid issued by the department.

• Any hospital the person had been attending.

• The family doctor to cancel any home nursing.

• The employer and trade union.

• The children's teacher if a parent, brother or sister has died.

• The person's bank.

PART V. USEFUL ADDRESSES

Age Concern Scotland
Leonard Small House
113 Rose Street
EDINBURGH
EH2 3DT
0131 220 3345
E-mail: enquiries@acsinfo3.freeserve.co.uk

British Association of Cancer United
Patients(Cancer BACUP Scotland)
2nd Floor
30 Bell Street
GLASGOW
G1 1LG
Tel: 0141 553 1553
E-mail: jennyw@cancerbacup.org.uk
Website: www.cancerbacup.org.uk

Cancerlink
11-21 North Down Street
LONDON
N1 9BN
FREEPHONE 0800 132905
Cruse - Bereavement Care
Scottish Headquarters
33/35 Boswall Parkway
EDINBURGH
EH5 2BR
Tel: 0131 551 1511
E-mail: crusescothq@bizonline.co.uk

Funeral Ombudsman Scheme
26-28 Bedford Row
LONDON
WC1R 4HE
Tel: 0171 430 1112
E-mail: fos@dircon.co.uk
Website: www.funeralombudsman.org.uk

General Register Office for Scotland
Ladywell House
Ladywell Road
EDINBURGH
EH12 7TF
Tel: 0131 334 0380
Website: www.gro-scotland.gov.uk

Humanist Society of Scotland

The Miscarriage Association
c/o Clayton Hospital
Northgate
WAKEFIELD
West Yorkshire
WF1 3JS
HELPLINE 0131 334 8883

National Association of Funeral Directors
618 Warwick Road
Solihull
West Midlands
B91 1AA
Tel: 0121 711 1343
E-mail: info@nafd.org.uk
Website: www.nafd.org.uk

Office of Fair Trading
Field House, Bream's Buildings
LONDON
EC4A 1PR
Tel: 0171 211 8000
E-mail:
Website: www.oft.gov.uk

The Stillbirth and Neonatal Death Society(SANDS)
Room 8, Castlecliff
25 Johnston Terrace
EDINBURGH
EH1 2NH
E-mail: edinburghsands@supanet.com

Scottish Cot Death Trust
Royal Hospital for Sick Children
Yorkhill
GLASGOW
G3 8SJ
Tel: 0141 357 3946
E-mail: h.brooke@linmed.gla.ac.uk

Scottish Executive Justice Department
V1 Spur, Saughton House
Broomhouse Drive
EDINBURGH
EH11 3XD
Tel: 0131 244 3581
E-mail: civil.law.policy@scotland.gov.uk
Website: www.scotland.gov.uk

Solas National HIV & Aids Information Centre (Scotland)
2/4 Abbey Mount
EDINBURGH
EH8 8EJ
Tel: 0131 661 0982
E-mail: solas@waverleycare.com
Website: www.waverleycare.com

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