Dual-Qualified Probate & Executry Solicitors

Probate is a document issued by the court confirming the appointment of executors and their right to administer an estate.  ‘Probate’ is actually the term used in England and Wales, in Scotland, the term ‘Confirmation’ is used.  Many organisations such as banks and building societies and insurance companies refer to Probate in their correspondence, regardless of where the deceased’s estate was.

The executor must assume many responsibilities. This can be a time consuming and lengthy process, depending on the size of the estate. It is possible to claim expenses from the estate for any costs, however, executors may not take a fee unless the will states an executor fee.

The duties ­­­­­of an executor include:

• List the property on the estate and apply for Confirmation
• Safeguarding and managing the property of the estate person until it is distributed
• In-gather assets held by other organisations (e.g. banks, insurance providers or building societies)
• Pay off debts and taxes due by the estate
• The executor will be liable for the estate, however, the executor’s personal liability is typically limited to the value of the estate
• Distribute the estate according to the deceased’s will or the law of Scotland where there is no valid will
• The executor is responsible for any errors made in the distribution or management of the estate. Executors should therefore keep clear records of all transactions and correspondence, so that disputes over the will or with regards to compliance to correct procedure can be resolved swiftly.

You must first ensure there have been no claims against the estate in six months following Confirmation, or by a cohabitee in the six months after the date of death.

Any personal effects bequeathed should be distributed. It is important to get receipts for any items given and accounts should be drawn up and be approved by the beneficiaries. Once all this is in place, the executor’s account should be closed once all payments have been made.

The cost of administering an estate again varies depending on the size and nature of the estate.  To ensure that a fair and reasonable fee is charged we arrange for our files to be independently assessed by a Law Accountant.

If someone close to you has passed away, the last thing you may be thinking about is how to deal with their social media accounts. For many, however, photos, videos and posts on a deceased’s social media accounts can be a source of comfort through the grieving process. Eventually, you will need to consider how best to deal with these social media accounts and other online accounts.

You generally have three options for how you can deal with a deceased person’s social media accounts:

• Leave the accounts open.
• Memorialise the accounts.
• Delete the accounts.

Each of these options has benefits and drawbacks.  The first thing you should do is check to see whether your loved one has left any instructions in relation to these. It is becoming increasingly popular to discuss digital legacies as part of the estate planning process and, where the deceased left details of their wishes, this can help you to decide what to do.

An executor is a person responsible for overseeing the Executry Administration.  An executor can be nominated through a will or, in the absence of a will, by the Court/Probate Registry.  If the executor does not want to carry out their duties personally, they can instruct a solicitor to act on their behalf.  This is often advisable, particularly in more complex estates.

How long does the executry take?

We cannot confirm an exact timescale for completion of an executry, as timescales can depend on a number of different factors, such as the number of assets and beneficiaries, the value of the estate and whether there is a house that requires to be sold.

An estate that is relatively small in value, but which comprises several assets, may take some time to administer and at the same time or longer than a high-value estate with one asset.  The general rule is that an estate should not be wound up in the first six months following the death.

The next step requires the executors to get permission from the court to start the process of winding up a deceased’s estate. This is known as confirmation (probate in England and Wales) and involves making an application to the Sheriff court for the area where the deceased lived. The application for confirmation must include certain things, such as an inventory of the property, money and other assets that make up the deceased’s estate.

The executor is responsible for ingathering the assets of the estate (property and personal possessions), dealing with all the paperwork involved and settling affairs. Once confirmation is granted, the executors can start identifying the deceased’s assets, paying off liabilities (such as debts, utility bills, inheritance tax and funeral expenses) and once this is done, they are responsible for distributing what remains according to the terms of the will or, if there isn’t a will, the intestacy rules in Scotland.

While it isn’t strictly necessary to have legal assistance when winding up a deceased’s estate, a solicitor can help smooth the executry process and ensure executors meet all their legal obligations. They can also help executors to ingather and value the deceased’s assets, assist with calculating and paying inheritance tax and advise on managing any disputes that can arise between the deceased’s relatives over inheritance. In most cases, an executor who gets legal assistance can pay all reasonably incurred legal fees out of the deceased’s estate.

A testate estate is one where the deceased has left a valid will directing how their estate is to be disposed.  An intestate estate arises when the deceased had not left a will, or they left a will but it is invalid as to who is to benefit to their estate.

If there is an intestacy, the law then directs who should benefit and different thresholds apply in Scotland and England.  Further administrative steps may be required when dealing with an intestate estate.  Our Bereavement team will be able to talk you through the process if this scenario is applicable.