Executries are one of our main practice areas. We pride ourselves in offering specialist legal advice as well as practical assistance and comfort to those dealing with the loss of a loved one. The formal legal process of dealing with someone’s affairs after a death can be overwhelming, but our solicitors and support staff have considerable experience in dealing with issues of succession.
We know that when someone dies there can be a huge emotional impact on those left behind. We fully appreciate that the administration of a person’s estate can feel like a huge burden leaving you feeling overwhelmed. At Blackwood and Smith our team aims to offer practical and legal advice to guide you through the process.
Our team understands that every estate is different and ensures that the process is tailored to each client. It may not always be necessary in some cases to instruct a solicitor however it is always important to obtain advice from an experienced professional to discuss the position.
Blackwood & Smith can assist you with all aspects of the Executry administration process. From discussing the Will, obtaining Confirmation and gathering assets to settling the estate with the beneficiaries. Our skilled private client team is on hand to assist you with a wide range of estates from large to small. Trusting our team to guide you from start to finish will give you peace of mind during the administration process.
The Executry process is not a quick one. Our team will ensure that you are made aware of the details of the process and that you are kept up to date at each stage. Managing expectations is important during this time and our team’s in–depth knowledge of the process and ensuring clients are up to date avoids frustration during this often difficult time.
The Executry process begins with establishing the assets and value of the deceased’s Estate. This ingathering of information can take some time as all the relevant asset holders need to be contacted and values confirmed. Once the estate has been established an application must be submitted to the relevant court for Confirmation. Once Confirmation has been granted the Executors who are charged with dealing with the estate can now begin the process of ingathering the assets and then ensuring they are distributed correctly (either in terms of the Will or in terms of the Succession (Scotland) Act 1964 if no will is in place). All tax matters with HM Revenue & Customs will require to be resolved.
The Executry process usually begins with an information gathering meeting. We will go through many questions with you to make sure that we are familiar with the extent of the deceased’s estate. We will also want to establish if the deceased person left a Will as we need to establish who the Executors will be and ensure that we take instructions from them.
After establishing the extent of the deceased’s assets, the exact value of them must then be determined. This ingathering of information can take some time as all the relevant asset holders need to be contacted and values confirmed.
Put simply a Bond of Caution is an insurance policy which is obtained to protect the beneficiaries of an estate. A Bond of Caution is usually necessary for an estate where there is no Will. The Bond protects from someone applying for Confirmation when they are not entitled to do so or against an executor failing to distribute the Estate according to the legal rules.
Once the estate has been established an application must be submitted to the relevant court for Confirmation.
Once Confirmation has been granted the Executors who are charged with dealing with the estate can now begin the process of ingathering the assets.
Once the funds have been received the Executors who are charged with dealing with the estate must now ensure that they are distributed correctly (either in terms of the Will or in terms of the Succession (Scotland) Act 1964 if no will is in place). Any tax that is due by the estate will also need to be identified and paid.
Our team genuinely cares about every Executry and we will deal with the process respectfully with patience and attention to detail. The legal process of obtaining Confirmation is not straight forward however our knowledge in this area means that we can ensure that it is carried out as efficiently as possible and each hurdle is met.
For most people dealing with the loss of a loved one is not something that is done every day. It is quite normal to have lots of questions about the process or the legal terms used during the transaction. We completely understand that the information you receive during the process might be new to you so please always feel free to ask us to explain something in more detail. Our solicitors have put together some answers to some questions that frequently come up during the course of an Executry.
An Executry is the process by which a deceased person’s financial affairs are settled. The deceased’s Executor is responsible for dealing with the Executry administration. Their role involves investigating the deceased’s estate, preparing an inventory of their assets and applying for Confirmation, paying any debts and taxes, and arranging payment of the net estate to the beneficiaries. In practice, most Executors will ask a solicitor to attend to the Executry administration on their behalf.
Confirmation is a court order which gives an Executor the legal authority to deal with the estate. It is required to allow for the sale or transfer of any heritable property (houses, land, buildings etc) but also to allow for closure of bank accounts, sale or transfer of stocks and shares, and closing of other investments. Occasionally, Confirmation is not required, where an estate has minimal assets, but in most cases, Confirmation is needed. To obtain Confirmation, an application must be made to the Sheriff Court including the deceased’s original Will or an Extract of it, and a full inventory of the deceased’s assets. If the court is satisfied with the information provided, Confirmation will be granted.
Where a deceased person left no Will, an Executry is still required and this can be more complicated than an Estate where a Will is in place. As no Executor has been appointed by the deceased (as this would require a Will), an application must be made to the Sheriff Court to have an Executor appointed. In a lot of cases the Executor will then need to purchase a Bond of Caution, a financial guarantee that insures the beneficiaries of the estate. The Executor will then carry out the Executry administration in the same way as though a Will had been left, including applying for Confirmation, but the estate will be distributed according to the laws of intestacy, rather than to the deceased’s chosen beneficiaries.
Inheritance Tax is a tax charged against the estate of a deceased person which is above a certain level. The tax rate is normally 40%. Generally, the first £325,000 of a person’s estate will be tax free, but there are additional allowances (including what is known as the residential nil rate band which can offer an additional £175,000 tax free), while the nil rate band can also be transferred to a spouse, meaning that most estates are not taxed. Where an estate is taxable, or even in some cases where it is not taxable, an Inheritance Tax Return must be made to HMRC. This return must be made, and an acknowledgement received and any tax paid, before Confirmation can be obtained, and also within six months of the death of the deceased. It is a complex tax and advice should be sought from a solicitor at a very early stage where the estate may be taxable.
One of the many parts of an Executry to be dealt with is the matter of Legal Rights. A Will does not necessarily determine the whole distribution of a deceased person’s estate. The estate of someone who dies leaving a spouse and/or children will potentially be subject to Legal Rights. These affect the net moveable estate only (so the estate excluding houses, land and buildings). Where the deceased left only a spouse or children, the spouse or children would be entitled to a half share of the deceased’s net moveable estate. Where the deceased left a spouse and children, the spouse would be entitled to a one third share while the children would be entitled to a one third share. Any remaining shares will be left to beneficiaries under the Will. In many cases, Legal Rights are not claimed as doing so prevents the claimant from receiving any other benefit from the deceased’s Will. Someone who stands to benefit from the Will often therefore does not claim Legal Rights. An Executor will normally offer entitled beneficiaries their Legal Rights in writing and ask them to formally accept or discharge their Legal Rights entitlement.
