You don’t have to use a solicitor but in most cases professional help is recommended. Making sure that the deceased’s affairs are sorted out properly and the correct beneficiaries are identified can be complex and time consuming. A solicitor experienced in wills and succession can shoulder the burden of ensuring that matters are dealt with correctly and efficiently and with the minimum of fuss.
Who should go to see the solicitor?
If there is a Will then the executor(s) named in the Will have the authority to give instructions about the estate. Check through the deceased’s papers or with their solicitor for a Will. If there is no Will then it may be necessary to apply to court to have an executor appointed. This will generally be the closest relative but a solicitor will be able to advise you.
What should you take?
When meeting with your solicitor, there are some papers that you should take:
- The death certificate;
- The original Will, if available;
- Title deeds to the deceased’s property, if available, although the Will and title deeds may already be held by the deceased’s solicitor.
A solicitor needs to know what money and other assets the deceased owned and what debts and bills they may have owed. It is useful to take along any paperwork that confirms or gives a clue as to what assets and investments the deceased may have held.
Don’t worry if you don’t have all the relevant paperwork. A solicitor can make general enquiries on your behalf.
Why do you need to see a solicitor?
In most cases you will need to apply for a Grant of Confirmation (the English equivalent is Probate) which a solicitor can do for you. A Grant of Confirmation is a formal court deed setting out the identity of the executor(s) and authorising them to gather information and otherwise deal with the estate. If there is a property in the estate then you will need a Grant of Confirmation before the property can be sold or transferred and if there are bank accounts and/or investments of more than around £10,000-15,000 you will need a Grant of Confirmation before money will be released.
To get a Grant of Confirmation your solicitor has to prepare a detailed list of everything the deceased owned showing precise values as at the date of death. A solicitor will correspond with the deceased’s banks, pension providers, life assurance companies etc. to gather together all that information. The process can be time consuming if there are a lot of assets or if it is not clear precisely what the deceased owned.
A solicitor will arrange for the list of assets to be signed by the executor together with the deceased’s Will (if there is one) and other H M Revenue & Customs papers. These documents must then be lodged at court in order to obtain the Grant of Confirmation.
If it is a “small estate” (currently defined as having a gross value of no more than £36,000) and you do not want to use a solicitor then your local sheriff court may help you complete the relevant paperwork required to obtain Confirmation.
What if there is no Will?
If there is no Will then there will not be an executor. A solicitor can apply to court to have one appointed. Anyone entitled to the estate can be appointed. This is usually a spouse or a child. It is not the case that a spouse will automatically inherit the whole estate so you should seek advice from a solicitor about this. If there is no spouse or child then the next closest relative can apply.
If you need a Grant of Confirmation and there is no Will then it is necessary to get a Bond of Caution (there is an exception if the spouse is entitled to the whole estate). A Bond of Caution is a type of insurance policy designed to protect the estate against embezzlement by the executor. You may well find it difficult to get a Bond of Caution unless a solicitor is dealing with this for you.
We can provide practical, sympathetic legal advice and support. Please contact a member of our Private Client team if you would like to discuss any matters with us. If, in addition, you feel you might benefit from bereavement counselling, the Cruse Bereavement Care Scotland helpline (0845 600 2227) can offer support.
Article 1 - Registering the death
Article 2 - Organising a funeral
