Blog written by Michael Carlin, Trainee Solicitor at Blackwood & Smith in Peebles
Some of the reasons why you should meet with a solicitor when a spouse or loved one passes away.
When a spouse/civil partner or loved one passes away the last thing on your mind may be to contact a solicitor. However, in most cases it is important to meet with a solicitor to check if anything requires to be done as in some cases it is vitally important that you do so in order to deal with the winding up of your loved one’s affairs.
Once the funeral and other arrangements are completed it is time to start thinking about the legal formalities. The first thing you should do is register the death with the local authority and complete a Tell Us Once form. This form will notify government organisations of the death such as: HMRC and DWP. This should save you some time as you will not need to contact everyone individually
You should then locate your loved one’s Will. It is common practice for this to be stored with a firm of solicitors, but some clients do like to hold the Will themselves. It is important that the original Will it is located.
Many believe that if the Will leaves everything to their spouse/civil partner, then everything passes to them automatically without the need for any legal intervention. However, in Scotland if you own a property jointly it will not pass automatically to the other on death unless there is a survivorship destination in your title. It is for this reason (amongst many others) that it is important to seek a solicitor’s advice on the death of a loved one, so they can advise you on the process required to deal with this.
What happens when there is a Will?
After you have located the Will, you should arrange to meet with a solicitor. They will go through the Will with you and explain what is required to carry out the instructions within the Will. You should provide the solicitor with as much information about your loved one’s estate as possible. This should include information about any properties they owned, bank accounts, stocks and shares, vehicles and any other miscellaneous information you think could be important. This information is vital for a solicitor to be able to advise you on the next steps of winding up your loved one’s estate.
Depending on what is included within your loved one’s estate, Confirmation may be required. Confirmation is a snapshot of what they owned at the time of their death and it is required for your solicitor/executor to be able to deal with certain assets such as property, stocks and shares and bank accounts over a certain value.
In certain cases, Inheritance Tax (IHT) may be payable on the estate. If the deceased was married, and leaves everything to their spouse/civil partner there will be no IHT payable on their estate when they die as long as both spouses were domiciled in the UK. However, IHT may be payable when the second spouse/civil partner passes away depending on how the estate is left. There are exemptions, which can be utilised. Every person has a nil rate band of £325,000. If this was not utilised by the first spouse/civil partner it can be transferred to the second spouse/civil partner’s estate – this is known as the transferable nil rate band. This will mean that IHT is only paid on estate above £650,000. If the second spouse/civil partner leaves their main residence to any direct descendants they have, then they will also be able to utilise the residence nil rate band of potentially £175,000. As with the nil rate band, it is possible to claim the first spouse/civil partner’s residence nil rate band as well. This means that the second spouse/civil partner’s estate up to £1 million may be exempt from IHT (these figures are based on current allowances and are always subject to change).
However, as with most things in life, it is not just as simple as reading the Will and following the instructions. If your loved one had children and they are not benefiting immediately from the Will they have a statutory entitlement to a share of the moveable estate. This entitlement is known as Legal Rights and it is an automatic right in Scotland. Introduced by the Succession (Scotland) Act 1964, Legal Rights entitle a spouse/civil partner, or any children to claim on any moveable assets of the deceased’s estate. At the moment a Legal Rights claim is only in respect of moveable assets, but the Scottish Law Commission proposes a new Legal Share, which would apply to the whole of a person’s estate including heritable property. This has not yet been brought into force.
What happens where there is no Will?
If your loved one did not leave a Will, then it is imperative that you seek the advice of a solicitor as soon as possible. When someone has not left a Will in Scotland their estate is considered intestate and it will be distributed according to the Succession (Scotland) Act 1964. This Act dictates an order of potential beneficiaries depending on the deceased’s next of kin.
The first step in dealing with an intestate estate will be to apply to the courts to have an executor appointed– in most cases this will normally be the nearest living relative over the age of 16.
Once an executor has been appointed, then the administration of the estate can begin and will follow the same steps as aforementioned.
When an estate is intestate a spouse/civil partner, children and cohabitants are protected by the law. A spouse/civil partner has rights know as Prior Rights. These rank above all other rights. Currently this enables them to claim the residential property up to a value of £473,000, furniture and plenishings up to £29,000 and a cash sum of £50,000 if there are children, or £89,000 if there are no children. After Prior Rights have been dealt with, any children can then claim their Legal Rights, which is a one third share of the moveable assets between all of the deceased’s children where there is a surviving spouse/civil partner. Due to the generosity of the figures in most cases the deceased’s estate will be exhausted by Prior Rights, so any children may not benefit from the estate. It is vitally important that you make a Will if you wish your children to inherit something from your estate and this becomes even more crucial in the case of second marriages, or relationships.
There is provision under s.29 of the Family Law (Scotland) Act 2006, allowing a cohabitant of the deceased to claim on the intestate estate. This is dependent on a number of factors such as the length and nature of the relationship.
Contact us for advice
Ultimately, no matter how simple and straightforward you believe your loved one’s estate to be, it is important and beneficial to seek the advice of a solicitor on the death of a loved one. We have been seeing an increased number of clients (usually the children of the deceased) approaching us on the death of the second spouse only to find out that the first spouse’s estate was not dealt with at the time of their death. This is usually due to an assumption that everything will have transferred automatically. This causes a problem with the administration of the second deceased’s estate as it ultimately means that two estate administrations need to be completed.
This article is just an illustration of the potential complexities of an estate. Each client’s estate is completely different and therefore it is impossible to give general advice on an individual’s estate. If you believe that a loved one’s estate was not dealt with, or fully dealt with on their death, then please contact us and our specialist private client team will be delighted to assist you, please contact us on 01721 720131 or email us at This email address is being protected from spambots. You need JavaScript enabled to view it. to discuss.
