HM Insights

Do I need a Solicitor to deal with an estate?

When it comes to dealing with a deceased person's estate, no one is keen to pay legal costs where they can be avoided. If the estate you are dealing with as Executor is relatively straightforward you may feel confident in dealing with matters yourself. Often the circumstances are such that a "D.I.Y" approach is not advisable. Bearing in mind an Executor can be found personally liable should things go wrong.  Here we consider some instances when you should consider calling in the professionals.

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Where Confirmation is required

Confirmation is the legal document granted by the Court which gives the Executor(s) appointed in a Will or under intestacy, title to deal with the assets in an estate and distribute them in accordance with the Will or under the rules of intestacy, depending on the circumstances.

If the total value of the deceased's estate (before deduction of any debts and expenses) is £36,000 or less, then Confirmation can be obtained using the small estates procedure. The Sheriff Court will assist a non-professional Executor with completing the relevant forms required to obtain Confirmation.

If the value of the deceased person's estate is greater than £36,000, the Sheriff Court is prohibited from providing any assistance to the Executor. Dealing with an estate at this level can often be complicated and seeking legal advice early is recommended.

Where a property is held in joint names

Where the deceased was a joint owner of the property, perhaps with a spouse, it is important to check the title deeds to establish how the joint ownership is held. The inclusion of a survivorship destination in the title deeds would mean that the half share of the property belonging to the deceased would pass automatically to the joint owner without the need for any further legal work. If however, the property is held in pro indiviso shares, the deceased's half share of the property would form part of their estate and Confirmation would be needed to transfer the deceased's half share to the beneficiary(s).

If this is not checked, the situation can arise (and often does!) whereby on the death of the joint owner it is discovered that the first deceased joint owner's share is still in their name and Confirmation in both estates is required. This can often be many years later and can cause difficulties and more expense. A quick call to your Solicitor asking them to check the title deeds on the first death can help avoid this.

Where there is no WIll

Where the deceased left no Will, and the value of the estate is such that Confirmation will be required, an Executor needs to be appointed by the Court. The person entitled to be appointed as Executor and the people entitled to inherit and in what proportion, are set in law. In most circumstances, an insurance policy known as a Bond of Caution will also be required. Again, this can often be complex and a Solicitor will help the Executor navigate any issues to ensure that the estate is dealt with properly and that the Executor carries out their duties effectively.

This list is note exhaustive of course, and often where estates are large or taxable or complex in some other way asking for professional help will provide peace of mind.

Get in touch

If you require any assistance in dealing with the estate of a deceased person, please do not hesitate to get in touch with any of the Private Client team at Harper MacLeod LLP.

Useful links

Making a will Scotland