Woman being in mourningWhat do I need to do after someone has died?

When a close family member dies, it can be an incredibly stressful time. There are some immediate needs to be taken care of – the funeral, for one. Then you have to inform people of the arrangements and deal with the financial side of things – and that’s when the problems usually start.

We usually find out that someone has passed away when a relative or friend contacts us to let us know. Their first question is usually “is there a Will?”. If there is, it might indicate the deceased’s preference for funeral arrangements. If there’s isn’t a Will or the Will doesn’t mention anything about funeral arrangements, then it’s really up to those who are arranging the funeral to decide the best way of dealing with the arrangements.

This is where the difficulties start to come to the surface. Funerals aren’t cheap so whoever is arranging it need to know that the deceased’s estate will be able to meet the cost – and that they have the authority to go ahead and make the arrangements. If there’s a Will appointing someone as executor, then it’s all very straight forward. If there isn’t a Will, appointing an executor might become a problem.

Let’s deal with the technical terms first:

The executor is the person who deals with the deceased’s estate. That means he or she (or they – frequently, a Will may appoint more than one executor) is responsible for all of the administration of the estate.

The estate is a sum of all of the property and assets the deceased person owned or was entitled to receive at the time of his or her death less any debts

Beneficiaries are people or organisations who are entitled to share in the estate

Bequests and legacies are sums of money or items of property that are given to or transferred as instructed in a Will

Legal Rights are entitlements to share in an estate that the deceased’s spouse or civil partner has along with the children of the deceased. These Legal Rights apply whether or not there’s a Will.

If there’s no Will, the surviving spouse or civil partner is entitled to certain rights called Prior Rights. If the deceased was only co-habiting with his or her partner, that partner will not have any Prior Rights and would need to apply to the courts to seek an interest in the estate.

Confirmation is the document that lists the entire estate and allows the executor to deal with the administration of the estate. You may have heard this called “Probate”. Probate is an English term and isn’t used in Scotland.

As you would expect, if you’re appointed an executor, we’ll guide you through all the technicalities and walk you through each stage in the process.

We then have to consider how we proceed to gather in the estate of the deceased and this will depend on whether there is or isn’t a Will.

Where there isn’t a Will

Our first task is to find out who is entitled to be appointed as executor. One we’ve established that, we need to apply to the courts to have that person formally appointed as the executor. This process takes time and there are court expenses and fees incurred during this process. We are also obliged to take out an insurance policy for the protection of the beneficiaries of the estate. Most of the time it’s fairly clear who the executor should be, but not always.

This also means we can’t really start finding out the extent of the estate until the court has appointed the executor.

if you were not married or in a civil partnership with your deceased partner and there is no Will, you have no automatic right to be appointed executor or, indeed,  to benefit from the estate.

We also need to find out about the deceased’s family. There are certain rules of succession that need to be followed when there isn’t a Will. This might mean that those the deceased thought would inherit his or her estate receive nothing at all! This is especially true if the deceased and his or her partner weren’t either married or in a civil partnership.

Where there is a Will

One of the first things a Will does is name the executor or executors. This means we are immediately able to take instructions and start off the process of finding out the extent of the deceased’s estate. We don’t need to petition the court to have someone appointed as executor.

How is the estate made up?

Having dealt with the appointment of the executor, we now need to find out everything about the deceased’s estate. We need to find out what property and assets the person owned and whether it was in his or her sole name or jointly with someone else. We need to write to banks, building societies, insurance and pension companies – and, indeed, any organisation that might hold information about the deceased’s assets.

We’ll also investigate the extent of debts the deceased had at the time of his or her death.

When we receive this information, it allows us to work out the extent of the estate and advise whether there are any Inheritance Tax implications. We keep the executor fully informed throughout this process and answer any questions he, she or they may have.

Once we have all the information necessary we prepare something called an Inventory of Estate. This lists everything owned by the deceased and everything owed by him or her.

What about any gifts the deceased made before their death?

We check whether the deceased made any gifts before they died because, depending on when these were made, they may have to be included in the estate for valuation purposes.

Confirmation

Once we have all of this information and have completed the Inventory, we can apply to the Sheriff Court for Confirmation. We have the executor sign off the Inventory and lodge this with the Sheriff Clerk and once it’s been checked, Confirmation is issued.

Collecting in the estate

Solicitors call this ingathering the estate. Once we have Confirmation, we are able to contact all those who owe money to the estate and ask them to send it to us. We’re also able to pay the debts of the estate once we receive this money.

When all this is done, we’ll have paid all the debts due by the estate and have money, property and assets available for distribution

Distributing the estate

Once we’ve completed the ingathering process, we’re then able to distribute the estate. If there’s a Will, this is usually pretty straight forward and we distribute the estate in accordance with the deceased’s wishes. This will include paying out any legacies or transferring property and then dealing with the residue of the estate (that’s everything else that’s not specifically mentioned). We also have to take into account any Legal Rights of any spouse or civil partner and/or children of the deceased.

If there isn’t a Will, we distribute the estate as required by the Law of Succession. We will calculate any Prior and Legal Rights and make sure everyone entitled receives the correct settlement.

The executor then signs off the accounts to approve these and then we complete the distribution.

What to do after a death? – give us a call

It might sound very off-hand to suggest to give us a call, but when someone dies, if you call us, we can try to give you the best advice in what can be very difficult circumstances.

There can be many intricacies we have to deal with and those involved can face difficult situations and we may have to tell them something they won’t like hearing. Life is never simple and death isn’t either. Complex and complicated estates can take longer to wind up than more straight forward estates.

We aim to keep the executor informed every step of the way, answer all his or her questions whenever these arise.

If someone close dies and you are involved in making arrangements and don’t know where to turn, give us a call and we’ll do whatever we can to help and advise you in these very difficult of times.