Death comes to us all. whether or not you have made a will, those left here after your demise have to deal with your estate – that is your money, property, assets and debts. Generally, where there is a will the winding up of your estate is less stressful and less expensive than if  there is none ( having no will is called Dying Intestate)

When there is a bereavement, our solicitors  in Glasgow and East Kilbride are available to help from the beginning. We are experienced in all the legal issues arising, and the procedures for obtaining Confirmation ( in England this is called probate which is sometimes a more familiar word).

All fees and outgoings are quoted in advance and your first consultation is without charge.

Notes on winding up the estates of deceased persons

Can you disinherit family members?

You can partly disinherit a spouse or children, but the law puts a limit on that. Spouses have the right of ius relicti (husband) or ius relictae (wife) and children have the right of legitim. The law divides the estate of a deceased into 3 parts - the prior rights; the legal rights, and the free estate. After payment of debts, and removal of heritable property (houses and land), what money etc. remaining is then divided up. If there is spouse and there are children, the spouse is entitled to one-third. If there are no children, the spouse gets a half. If there is a surviving spouse/parent, the children share a third among themselves. If no spouse, they share a half. The deceased cannot get out of this by trying to will everything to someone else.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

What is the order of priority in the family when someone dies without a will?

In the absence of a will to deal with the whole estate, the order, after paying debts and dealing with legal rights is:
1. children – sharing equally. Note the eldest has no priority.
2. parents and brothers and sisters – half to each group
3. brothers and sisters ( if no parents)
4. parents (of no brothers and sisters)
5. spouse
6. uncles and aunts
7. grandparents
8. brothers and sisters of grandparents.
Note each category takes the whole remaining estate. So if there are no children but there are brothers and sisters, there will, be nothing left for the spouse.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

What is an executor and what does she/he do?
The executor becomes the administrative officer for the estate. Whether he or she is a spouse or family member, a solicitor, or any other adult person, his duties commence on the death. He has the right to ingather the estate, correspond with banks and financial institutions and companies, and to apply to court for a Confirmation order, to divide up the estate and settles debts, sell the deceased’s property and generally do all that a will dictates (or if no will, what the law requires). If the executor defaults or acts unlawfully, the beneficiaries can take him to court for what is called count, reckoning and payment to ensure that proper division of the estate takes place. The post is unpaid unless the will says otherwise. If the executor defaults or fails to carry out his duty, the beneficiaries can take court action against him. If he retains the money due to beneficiaries, this may even amount to theft. The executor can be anybody nominated by the will, but if there is no will, it should be a person who is entitled to a share of the estate by the law of intestate succession.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

What is Probate/Confirmation?
Confirmation is the Scottish procedure to make the appointment of an executor more formal. It involves the sheriff court checking the inventory of estate and the information presented to court by the executor or solicitor on the deceased and the death, and granting a certificate that requires banks and any person or body holding the money belonging to the deceased to hand it over to the executor.

Why won’t the bank release the money of the deceased to the family automatically?

For convenience the bank can choose to settle the money due to the estate on the word of the executor, with appropriate ID and paperwork done. But this will only be if the amounts are small, and more likely if there is a will. But if the bank chooses to insist on Confirmation, it is able to do so. Banks are cautious in case there are perhaps other family with competing claims on the money, or if a person misrepresents facts or relationships to it, or if there is a subsequent will that the person claiming the money has not mentioned.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

How can I avoid death duties/inheritance tax?
In 1986 Inheritance Tax replaced capital transfer tax, which replaced death duties in 1975, and is presently set at 40% of an estate worth over £255,000. Below £325,000 there is total exemption from tax. There is also exemption when a spouse dies and there is a surviving spouse whether or not there is a will. There are two main ways of legitimately avoiding tax. One is to give away enough of your estate during your life so that when you die, you own less than the threshold figure. The downsides of this are twofold: firstly, it means you lose control over that part of your estate you have given away; secondly, the Inland Revenue looks back from the date of death, and any transfers of money or property a deceased made within that time, whether by gift or sale for below value, and includes within the estate the chargeable transfers made. The second way of avoiding tax is by creating a trust, which is a legitimate legal vehicle for the ownership of assets of different sorts. The trust is a different legal person from the truster or original owner, and hence does not die when the human individual dies. The disadvantages of this are that it can be complicated and sometimes expensive, and requires professional help in setting it up effectively and managing it on an ongoing basis.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

How much does it cost to wind up an estate?
There is no fixed cost. If the estate is a Small Estate the Sheriff Clerk of the local sheriff court can assist you in completing paperwork. If above the Small Estate limit, then it depends on how extensive the estate is, and whether there is a will (if there is one, the costs are always less than for an intestate estate). If a deceased has a house and one bank account, the work to get a grant of confirmation will be small. If the deceased had ISA’s, shares, insurance, an overseas timeshare, a business, and a dog, then there is considerably more correspondence for the solicitor to do. The cost will not be less than hundreds of pounds, and can go up to thousands.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

How long is it before legacies are paid out?
Legacies should not be paid out earlier than 6 months after the death, but it may be longer, if, for example, the executor is trying to track down distant family members, or has to get involved in lengthy correspondence about some parts of the estate, or if there is a dispute among family, or if the DSS are investigating possible over-payment of benefits to the deceased during life, or there is income tax due by the deceased – or to him. It is a matter for the executor as to how and when to finalise the estate. If beneficiaries think it is taking far too long, they are entitled to go to court for an order to force settlement.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

What happens if a long-lost relative turns up after winding up?
A relative or named beneficiary that was known about is entitled to insist on payment or receipt of a legacy or share of residue up to 20 years after the death, after which the right prescribes, i.e. is lost. He can sue the executor for payment.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

Who has to register a death and when?
Every death must be registered in the Register of Deaths for the appropriate district within 8 days from the date of death, or from the date of finding of the body.  Certain people have a legal duty to go to the registry office and give information to the best of their knowledge, as well as to sign the Register in the Registrar’s presence.  Those people are:  
•    any relative of the deceased;
•    any person present at the death;
•    the deceased's executor or other legal representative;
•    the occupier, at the time of death, of the premises where the death took place; or
•    if none of the foregoing apply, any other person having knowledge of the particulars to be registered

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876

What happens if a death is suspicious?
In every death, a doctor provides a certificate of cause of death, to the best of his knowledge.  A doctor, the police or a registrar may refer a suspicious death to the Procurator Fiscal, who may interview relatives and other witnesses, or ask the police to assist, call for a further medical report or order a post-mortem.  If the death gives rise to serious public concern, a Fatal Accident Inquiry may be arranged.  This is held in the sheriff court.  When the Procurator Fiscal’s investigations are completed, the Registrar General is notified of the findings. Note that if as a consequence of investigations the culprit is found to be someone who would benefit or inherit from the estate of the deceased, they are barred from such inheritance.

Contact our solicitors based in Glasgow & East Kilbride for expert advice: 0800 032 9876