Wills and Executries
Current statistics show that more than half the population of Scotland have
not made a Will. Some people do not believe they are wealthy enough, others
think they are too young, and many people assume that their money will
automatically pass on to the people they want it to go to. However,
with the rapid increase in house prices meaning more estates may be liable
to pay inheritance tax, evolving family structures and changing demographics,
making a Will is more important than ever.
What if I don't have a Will?
If you do not leave a Will, your estate will be distributed according
to the rules of intestate succession. It is not the case that your
spouse or civil partner will automatically receive your entire estate,
although they do have certain rights. Children also have rights, and the
rules may well dictate that other family members, often unexpectedly, will
inherit.
Who should make a Will?
Everyone! Whether they are young or old, married or single. Co-habitants
are in a particularly vulnerable position. New legislation to protect
co-habitants' rights is, as yet, untested and making a Will can provide
certainty.
There are key times in anyone's life when you should consider making a Will
or updating your current Will – for example, if you are co-habiting with
someone, getting married or entering into a civil partnership, moving home,
buying or selling a second home or reviewing your investments, if there are
new members of your family whether children, step-children or grandchildren,
if you separate or get divorced, or your family circumstances change.
Why make a Will?
YOU decide what is to happen to your assets, rather than relying on the
complex rules of intestacy.
Leaving a Will takes away a lot of the uncertainty and stress for family
members dealing with your estate. You can appoint someone trusted to be
your executor.
You can make sure that those you care about will be provided for – intestacy
rules do not take account of step families, children's spouses/
civil partners/ cohabitants, or wider family or friends, or more complex
family arrangements.
Tax planning can be incorporated into your Will to minimise any inheritance
tax payable.
Trusts can be incorporated into your Will to protect your assets, whether for
tax planning purposes or for young children.
You can leave instructions for charitable legacies, gifting specific items
e.g. family heirlooms, specifying your wishes for guardians of young children,
what is to happen to your pets, any funeral instructions you wish to leave.
How to write a Will
Contact one of our experts for help with writing a Will – everyone's
family and financial circumstances are different, we will discuss your
individual situation, the options available to you and how to make sure
your wishes are carried out.
Executries
When you are coping with a bereavement, it can often seem daunting
to tackle the day to day bills, statements and correspondence let alone the
legal aspects of the deceased’s Will and transferring their assets. We can
help with all aspects of an executry, and aim to ease the burden on family
and friends and help the executor settle the deceased’s affairs efficiently
and with the minimum of fuss.
What to do when someone dies
There are certain formalities which need to be attended to when someone dies.
The death must be registered and there will be funeral arrangements to take
care of. It may be that the deceased left instructions for their funeral
with their Will and so it is worth phoning their solicitor to find out
(if we hold the Will, we can usually let you know immediately). We can
help with these formalities if required, and you can find further information
about registering a death from the General Register Office for Scotland.
Winding up the estate
What to bring with you – to help us ascertain the extent of the estate, it
would be useful if you bring the death certificate, personal papers, bank s
tatements, share certificates, title deeds, and any other documents which you
think might be important. If you wish, we can deal with phone bills, council
tax, utility bills, insurance, and so on – we can help to ease the burden
and worry if there is an empty house, and deal with day to day practicalities.
We can deal with valuing house contents and having the house cleared if
necessary.
Small estates – estates totalling less than £30,000 can be dealt with
directly through the Sheriff Court. More information on this can be obtained
from your local Sheriff Court or at www.scotcourts.gov.uk
Insolvent estates – in cases where there are a lot of outstanding debts and
the estate may be insolvent, the executry will be referred to a licensed
insolvency practitioner.
What is the process to wind up the estate?
- We will collect information to complete an inventory of all the
assets and liabilities of the deceased’s estate. This involves liaising
with banks, building societies, investment providers and brokers,
lenders, insurance providers, utility companies and so on.
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We will then calculate whether there is any Inheritance Tax (sometimes known
as death tax) to pay and discuss payment options. This has to be paid before
we can apply for Confirmation (known as Probate in England).
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Application for Confirmation is lodged with the Sheriff Court and
Confirmation is usually issued within 7 – 10 days. Confirmation (in
England this is called Probate) is the document that gives the executors
of the estate legal title to deal with the assets and to distribute them
in accordance with the provisions of the Will.
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Once we have Confirmation, we will request release of funds and transfer or
sell the various assets in the estate. Any outstanding debts and bills,
including funeral expenses, will be paid, and then we may make interim
payments to beneficiaries. If the deceased’s house is to be sold, NRBS is
ideally placed to market the property and deal with the conveyancing.
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Our experts are also able to advise beneficiaries on the tax implications
of inheriting property or other assets and investment matters. We can help
beneficiaries to protect their assets, manage their investments and plan
for the future, including their own tax and inheritance planning.
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Throughout the process of winding up the executry, we keep accounts and
records of payments made and funds received. We will prepare final accounts
for the executors to approve before distributing the remainder of the estate
in terms of the Will.
What if there is no Will?
- If the deceased has not left a Will, there is an additional step at the
beginning to appoint an executor. There are rules as to who can be appointed
in such cases, and we will discuss with you who this should be. An application
is made to the Sheriff Court, and along with this we must provide a Bond of
Caution. This is an insurance policy to cover any future claims on the estate.
- Once we have the Bond of Caution and the executor has been appointed by
the Court, the administration of the estate is broadly the same as if
there had been a Will. We will draw up the inventory, pay any inheritance
tax due, apply for Confirmation (known as Probate in England), deal with
having funds released and assets transferred or sold, provide accounts and
make final distributions to beneficiaries.
Who are the beneficiaries if there is no Will?
There are rules laid down as to who inherits the estate if there is no
Will left by the deceased. It is not the case that spouses or civil partners
automatically inherit everything, although they do have certain rights.
Children also have rights, and then there are rules laid down in law as to
the order in which other family may inherit. The result of this can sometimes
be surprising and we recommend that everyone makes a will in order to be
certain of who will inherit their estate.
Please contact NRBS to discuss putting in place a Will as soon as possible.