Do you need a solicitor when a loved one dies?
8th September 2021 by Katie Marshall Posted Under: Executries
Dealing with legal matters when a loved one dies can be complicated. It is common to appoint a solicitor to deal with a deceased person's estate. Doing so will relieve you of some stress at what is already an emotional and stressful time. But is it always absolutely necessary?
The first thing you should do is find out who is entitled to act as executor of the estate. To do this you should check whether the deceased left a will.
If the deceased had a will
If the deceased left a will, then the person named as the executor should complete the administration of the estate.
The executor may not need the help of a solicitor if the estate is quite small and the person that passed away did not have many assets. Sometimes asset holders (like banks and pension providers) will be happy to pay out the funds they hold to the executor without the need for a Grant of Confirmation. You may see Confirmation referred to as "Probate" in various documents. Probate is the English equivalent of Confirmation. The financial institutions will most likely ask for a copy of the will, the death certificate and the executor's identification documents. The executor can then gather in the money and, after six months, distribute it to the beneficiaries of the will.
The process becomes more complicated when Confirmation is required on an estate. Often banks and building societies will request a Certificate of Confirmation before they release the funds they hold. This is likely to be the case where they hold large sums of money. Confirmation is always required where the deceased solely owned a property.
What needs to be done to obtain Confirmation?
When Confirmation is required, you will need to complete a full inventory of the deceased person's assets. This means compiling a list of the values of everything the deceased owned at the date of their death. You will also need to complete and submit application forms to the sheriff court before asset holders will release money.
Where Confirmation is required, while the executor can do this process themselves, most people choose to appoint a solicitor to help simplify the process. This can be particularly beneficial if complicated Inheritance Tax forms also have to be completed, or income tax or capital gains tax has to be paid on any of the assets. A solicitor can also prepare an executry account, to account for the funds into and out of the estate and the proposed final distribution among the beneficiaries. Having the account approved by the beneficiaries can help protect the executor from future claims.
Often, you may be able to complete a lot of the work yourself. For example, collecting the date of death values of the various assets and compiling the inventory. You could complete the majority of this work yourself before handing it over to a solicitor to complete the forms for Confirmation and Inheritance Tax. This would help to keep legal costs down.
If the deceased did not have a will
Where the value of the estate is under £36,000 and the deceased did not have a will, it will likely be possible to deal with the estate yourself with the assistance of the sheriff court.
For estates with a value over £36,000, it becomes more complicated. There are additional steps that need to be followed. In this situation, it can be beneficial to appoint a solicitor to assist you and guide you through the process. The court will need to appoint an executor. You may then need to arrange a Bond of Caution which is an insurance policy that protects the estate. After that, it may be necessary to apply for Confirmation. Inheritance Tax forms may also be required, depending on the value of the estate and who the beneficiaries are.
What are the benefits of appointing a solicitor when a loved one dies?
While it is not always necessary to appoint a solicitor, there are a number of benefits as a solicitor can:
ensure you are following all necessary steps of the estate administration process correctly;
explain the duties and responsibilities of an executor to you and ensure you are not putting yourself at risk of claims by beneficiaries;
prepare the necessary Confirmation application forms on behalf of the executor, deal with tax, and prepare an executry account.
In addition, appointing a solicitor when a loved one dies to help administer the estate can relieve some of the stress at what is an already emotional and stressful time.
We would be happy to help you decide whether you need to appoint a solicitor following the death of a loved one. Please contact our Personal Law team on 0131 225 7558 to speak to one of our Personal Law Solicitors.
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.
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