Making a Will is incredibly important for a host of reasons but especially in ensuring that your estate ends up where you intended. The number of unclaimed estates in Scotland is higher than ever and many of those will ultimately end up being paid to the Crown.
If you die without leaving a Will, the Court can appoint an executor to deal with your estate and anyone who is entitled to benefit from the estate can apply for this role (based on a specific order of preference).
Regardless of how they are appointed, the role of executor is incredibly important and includes a host of responsibilities including: identifying the assets of the deceased, paying tax and debts, obtaining confirmation, and distributing the estate to the beneficiaries.
One of the final jobs of the executor is to distribute the estate in accordance with the Will or per specific rules of succession where a person has died without a Will (intestate). Often this can be one of the hardest jobs. Tracking down those who are entitled to an estate is not always straightforward and where they cannot be traced the estate is held by the Office of Queen’s and Lord Treasurer’s Remembrancer (QLTR), which keeps the assets on behalf of the Crown.
According to the most recent statistics, the QLTR is currently sitting on close to 500 unclaimed estates, worth millions of pounds in total, from people who died without an heir in Scotland over the last 10 years.
It is vital that an executor makes all reasonable efforts to find every beneficiary in an estate as they may be personally liable for any breach or failure to discharge their duties to the beneficiaries. Executors must also wait six months from the date of death before making final payments, to avoid personal liability.
What happens when a beneficiary cannot be located?
Where families have lost touch it’s possible that an executor may not know where, or potentially who, the beneficiaries of an estate are.
In these circumstances there are a number of ways an executor can try to establish the information:
- Ask known family and friends
- Place an advert in a newspaper local where a missing beneficiary is believed to live
- Check with the registrar for births and deaths
- Check against the electoral roll
- Employ a genealogist or Heir Hunter to find the missing beneficiary.
- Distributing the estate to the known beneficiaries in exchange for a guarantee from each of them that should the missing beneficiary appear they will reimburse their share; or
- Purchase Missing Beneficiary Indemnity insurance whereby the insurer can make payment if a beneficiary comes forward after the distribution of the estate has been completed.
If none of these avenues provide a definitive answer, it is possible for an executor to protect themselves from any potential liability and the position of any future beneficiary who may come forward in the following ways:
- Distributing the estate to the known beneficiaries in exchange for a guarantee from each of them that should the missing beneficiary appear they will reimburse their share; or
- Purchase Missing Beneficiary Indemnity insurance whereby the insurer can make payment if a beneficiary comes forward after the distribution of the estate has been completed.
One of the main points to think about is that much of this additional work can be avoided if people make a Will.
Leann Brown, Associate in our Private Client at Lindsays Solicitors, says: "We all know that we are living longer and have far more complicated family lives than previous generations, however, there can still be a reluctance to plan for the future.”
“Although the legal framework is there to set out what happens if you don’t have a Will, things won’t take care of themselves and in a number of cases estates go to the Crown. It is just not worth leaving these things to chance.”
"Having both a Will and a Power of Attorney prepared will be one of the most significant legal arrangements you will make in your lifetime."
