Guest blog post from Gibson Kerr’s executry solicitors based in Edinburgh, Scotland about winding up an estate.
Executry, intestacy, confirmation: big words that make the process of winding up a loved one’s estate just that bit more daunting. But don’t let the legal jargon put you off. The process it describes is, at its heart, pretty straightforward.
The basic process
Put simply, when a person dies, he is still nominally the owner of all his possessions – and his debts. No one else, unless the items were owned jointly, has the right to use, sell or dispose of those possessions.
Procedures have therefore been developed that give another person authority to deal with all the assets or debts of the deceased person.
That person, known as an executor, has to work out what the deceased actually owned, and how much it was worth. He has to gather everything in, pay off all the debts and any inheritance tax, and only then can he transfer what is left to the people who are entitled to it – the beneficiaries.
Is there a will?
The whole process hinges on whether or not there is a will.
It makes things much simpler if there is a will, because it appoints the executors and also lists the beneficiaries as well.
If there is no will, then an executor needs to be appointed by the court, and the beneficiaries identified. In this case the question of who is a beneficiary depends not on what the deceased person wanted, but on who the law says the beneficiary should be.
Inventory and valuation
The next step is to find out how much the deceased person owned, and owed, at the time of his death.
The executor – or more usually his solicitor – makes an inventory of the debts and assets owned by the deceased, listing things such as the house, mortgage, shares, bank accounts, cars and other property. The executor then finds out how much these are all worth.
This can, unfortunately, take a bit of time, as it can take a while for the banks and financial companies to get back in touch with a figure.
Confirmation or probate
The executor then has to be given official authority to deal with all the assets. This is called ‘confirmation’ (or in England, probate), and is granted by the local Sheriff Court.
Confirmation is a legal document that entitles the executor to sell or otherwise dispose of the assets listed in the inventory. Without it, the executor can do nothing, unless the estate is a very small one.
Distribution
Once the assets are in, the executor can then begin distributing them – paying off the debts and transferring the remaining money and other assets to the beneficiaries.
Detailed accounts are kept, and have to be approved before the final distribution is made.
Although generally straightforward, it is a time-consuming process, which usually takes between six months and a year to complete. Very large or complex estates can take a lot longer, however.
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