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Executry

Hastings Legal provide executry services in Scotland.

If someone close to you has died and you need to wind up an estate please get in touch.

If you need to know what to do immediately after the death  refer to this article.

Executry is the process of dealing with the property of a deceased person.

How things proceed after the funeral depends on whether there is a will or not and we recommend taking legal advice before proceeding further as personal legal liability rests with the person or persons taking responsibility for winding up the estate. Hastings Legal are here for executry services in the Scottish Borders we can guide you through the process or take on the responsibility for winding up an estate.

Appointing An Executor

An executor must be appointed. The executor is the person eventually entitled to distribute the estate of the deceased. The process of becoming formally appointed is a court process – application is made to the local sheriff court in the sheriffdom where the deceased has his or her residence. The executor is either nominated in the deceased’s will or usually is the nearest next of kin to the deceased.

Confirmation Of The Executor

“Confirmation” is the name of the document the court provides when it confirms that the person who applied to be executor is confirmed by the court as being entitled to hold that office. The document of confirmation is important as it shows to third parties that the person named in it is entitled to deal lawfully with the deceased’s property.

Ingathering The Estate

Armed with confirmation the executor now “ingathers” the deceased’s property. This can be quite a long process even in relatively modest sized estates. A list of all the deceased’s estate consisting of assets and liabilities is prepared. This is called the inventory of estate and it should contain everything the deceased owned less any debts due. The inventory will bring out a final amount due to be distributed.

Paying The Debts Due

Just as property is ingathered so effectively are debts. The executor once ingathering has started can also start paying off debts due, including for example funeral costs. There is an order of priority for payment of debts if it were likely that there was insufficient in the estate to make all payments. Some debts such as funeral costs and administration expenses are “privileged” and must be paid first. An extremely important point to note here is that any tax due to the Inland Revenue is payable. If the executor fails to pay the correct tax he or she is personally liable to the revenue for any shortfall – so we strongly recommend legal executry advice be taken before this point is reached.

Distributing The Estate

This can be a complex area. Property may be sold and monies distributed or property such as houses passed on to new owners. It all depends on the circumstances. If there is a will the executors must make over the property as stated in the will. But children have certain legal rights and they may claim part of the estate no matter what the will says. A surviving spouse also has legal rights which he or she can claim. Some surviving spouses do make such claims if it is more advantageous to them than accepting the terms of the will. But they must accept the will or claim legal rights they cannot do both. This is a difficult area and legal executry guidance is strongly recommended.

If there is no will the estate must be paid out in accordance with rules laid down by law. Again this is a complex area of executry law but the rules are designed to pay most of the estate over to any surviving spouse or children, with succession opening up to other relatives if there is no surviving spouse or children. Again it is our strong view that distributing an estate without legal advice is a dangerous minefield – and we do not recommend a DIY approach here. But hopefully matters are concluded successfully with all parties receiving their entitlement.

Other Points To Note

Timescales – it is extremely difficult to place timescales on this type of work. For legal reasons it is not safe to distribute any estates in under 6 months. Most estates can be paid out within 6 or 12 months from death. However the legal executive cannot always control timescales in this work. Longer timescales are the norm for larger estates or can be caused by difficulties tracing people, tax issues, property sale issues, or disputes even. Where the executry estate is small – currently under thirty thousand pounds, there is an accelerated procedure available at the local sheriff clerk’s office – virtually a DIY procedure.

Insurance

As Solicitors for Older People Scotland we have full professional indemnity insurance to cover our work, so in the unlikely event of a mistake by us no loss should accrue to any party. Anyone doing executry work without insurance cover is laying himself or herself open to claims should things not be done properly.

A first meeting telephone consultation with one of our members is absolutely free. If after that meeting work is instructed terms and conditions and fee levels will be fully explained to you at the outset.

Give us a call and let us guide you through the process.
“Despite our fee titles and claims of ownership, we are all brief tenants on this planet.”Stewart Udall

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