You have registered the death, arranged the funeral and now it is time to look at estate administration. The current lockdown period has had a significant impact on the process of administering a deceased person’s estate. The Courts in Scotland, at the time of preparing this Blog, are not currently progressing Commissary work (estate administration). They are, however, looking at how to restart Commissary business soon via remote working. However, even once the Courts have finalised appropriate procedures to restart this business, there will inevitably be a backlog of cases to be dealt with. One of our experienced team will be more than happy to guide you through the process.
The first thing to check is whether the deceased died testate (having prepared a Will) or intestate (without a Will). Where the deceased died without a Will, an application to the Court under the dative petition procedure will usually be necessary (where someone applies to the Court to be appointed as Executor). Scots law provides a list of “preferred” classes of person who can apply. Where the deceased died intestate you may also require to arrange a Bond of Caution (insurance policy based on the total value of the deceased’s estate) — this is not required where the deceased died testate.
If the deceased had a Will, they will have named an Executor (or Executors) to wind-up or administer their estate. When dealing with the administration you may be advised to obtain Confirmation (known as Probate in England). This is a legal document from the Court providing the Executor with the authority to realise any assets within the estate (e.g. to sell a house or close a bank account) and distribute the estate according to the Will (or the law of Intestate Succession in Scotland where there is no Will). The application for Confirmation includes a list of all of the deceased’s assets, with corresponding values as at the date of death.
The process for applications for Confirmation can differ depending on the value of the estate:
1. Small Estates, where the total value of assets is £36,000 or less.
2. Large Estates where the total value of assets exceeds £36,000.
These sums are prior to any debts being deducted. The forms and fees for each process differ. If the estate qualifies as a Small Estate, you may be able to administer this on your own or with the help of the Sheriff Clerk. You should however bear in mind that the Courts are also subject to government restrictions and are closed to the public other than for essential and urgent business. The “usual” process is to make an appointment with the Clerk at the Court and attend in person. They will then assist you to prepare the Inventory (list of assets) for Confirmation purposes. It is also possible to instruct a Solicitor to assist you with this process. It can seem overwhelming dealing with these things on your own when you are coming to terms with the death of a loved one and it can be helpful to have the assistance of an experienced professional to guide you through the process.
For Large Estates, the Executor will often instruct a solicitor to assist. Dealing with larger estates, particularly where a house or other valuable assets are involved, can be complicated. This will be covered in more detail in Blog 4.
In the event of any errors or mistakes made by the Executor, whether that be deliberate failure to disclose assets in the estate or distributing the estate incorrectly, they can be held personally liable. Where an executor is in any doubt about their ability to carry out their role, they should instruct a solicitor to avoid as costly remedies to correct mistakes. In the case of family disputes, the Executor is strongly advised to instruct a Solicitor.
Where the deceased owned a property which is left vacant, a priority is to inform the buildings insurance provider. You (or your Solicitor) may require to take out a new policy or take measures to ensure cover continues (e.g. you may be asked to remove specific items, ensure the property is checked on a regular basis, turn off water pipes etc. — insurance companies may provide specific advice taking account of coronavirus lockdown restrictions).
Most institutions (banks/building societies) require the Executor to sign and complete a form to authorise release of funds held by them. During the coronavirus lockdown, some institutions have introduced an online closure service. Where this is not possible, there will inevitably be further delay in administration of the estate due to many staff within financial institutions currently working from home and having limited or no access to mail.
Should you have any further questions or require further guidance in any aspect of estate administration of a loved one our Private Client Team have extensive experience in assisting clients in the estate administration process. During lockdown we are continuing to work remotely and securely from home. Our preferred method of communication at this time is email. Should you prefer to speak to a member of the team, please call our reception: 0141 221 5562 or 0131 220 7660.
