Executries

What does this work involve?

Age UK has a useful explanation of some of the terminology that you may come across when an estate must be finalised (wound up). The Scottish Courts and Tribunals Service also has an information page. There are several steps that must be taken throughout this process.

If a person made a will before their death, they may have chosen one or more executors to deal with their estate. If there’s no will, or the named executor can’t take the appointment, the court will appoint an executor. That person starts the process by applying to a Sheriff Court for confirmation.

An executor must find and keep the assets safe, pay the debts, and then distribute whatever is left in the estate to the people whom the will has named as beneficiaries. In Scotland, immediate family members who have not been named as beneficiaries might have a claim, under legal rights, for a portion of the estate. If there is no valid will the assets will be distributed according to a set formula. An executor must make sure everything is properly accounted for at the end of the process.

Must I use a solicitor?

An executor does not have to use solicitors to help them. However, because an executor is responsible for any mistakes made, and because winding up estates can be technical, complex and lengthy, a solicitor’s specialist knowledge will help executors to meet all their obligations.

If an executor does appoint a solicitor, the executor is the client and the solicitor takes instructions from the executor, and not from the beneficiaries or anyone claiming under legal rights. The solicitor’s fees will be paid from the estate.

All communication between executor and solicitor is confidential. The solicitor acting for the executor does not have to comply with any requests made directly by beneficiaries unless the executor instructs them to do so. However, if a solicitor is named as the only executor, they have a greater duty to keep beneficiaries advised on what is happening with the estate.

What should I do before my first meeting with a solicitor?

Make it clear, when you arrange your first appointment, whether you are an executor looking for help to wind up an estate, or whether you want to query the way that someone else is dealing with an estate. Some firms do not deal with estate work at all. A solicitor who has already been appointed by an executor will not be able to speak with you directly, unless the executor has agreed to this. You may need your own solicitor.

If you arrange an appointment, ask what documents you need to bring to the first meeting. This might include proof of your identity, originals or copies of the will, title deeds, and other personal papers of the deceased. If you’re querying how someone else is dealing with an estate, you should take copies of any correspondence you’ve had with the executor or other people involved with the estate.

What will it cost?

Some firms offer a free first consultation, so it’s worth checking if this applies to your matter.

If you are challenging the way that an estate is being handled, you will need to pay your own legal fees, but you might be able to recover some costs if your disagreement is resolved by a settlement or court action. Your solicitor will probably charge by the hour, and you should make sure you understand the rates and method, from the terms of business that they will send to you.

If you are an executor instructing a solicitor to help you finalise an estate, the firm’s fees will be set out in the terms of business that you will receive. It is likely that the fees will be charged by the hour for the time spent on the estate. Court fees may apply to some estates in Scotland and there may be other similar charges if any part of the estate must be handled outside Scotland. Winding up an estate also involves other costs, such as inheritance tax and valuations. The fees and other costs will be paid from the estate funds.

Solicitors often can’t give an accurate estimate of the time needed to finalise the estate, which means it is also difficult for them to estimate the final costs at an early stage. Many solicitors arrange for an independent check or assessment of their fees but even if this is not set out in their terms of business, an executor can ask for this to be done. All costs will be shown in the final executry account, which the executor must approve.

Can I get legal aid?

No. Legal aid is not available for winding up of estates. However, if the executor is receiving benefits, it is possible that some of the court fees may be discounted.

How long will it take?

Creditors have six months to claim any money due from an estate. In addition, there are other requirements such as finding beneficiaries, obtaining a certificate of confirmation from the court, dealing with banks, valuers and tax returns, and arranging for sale or transfer of assets. Most estates take a minimum of 9-12 months to finalise. Beneficiaries will not usually get any payments until at least the debts are known and settled, and the first accounts have been drawn up.

Even if an estate may seem simple at the start, there can be unexpected events and queries. It can take longer than expected to get answers or valuations from others, to get tax returns finalised, deal with claims and arrange for transfer of assets. A solicitor isn’t always able to control delays caused by others. Try to agree with your own solicitor when they will provide you with progress reports. You should try to reply to your solicitor’s queries as soon as possible, to help move matters along.

What happens next?

If you have instructed a solicitor, they will send you their terms of business, setting out what the solicitor will do, how they will charge, what is and is not included in the fee, and what they expect from you. It will also tell you how to raise a concern or complaint. It’s very important to read this carefully and keep it safe.

Many firms send out information leaflets too, to help you understand the process. If at any stage you come across anything you don’t understand, you should always ask your solicitor to explain it.

If you are a beneficiary, the solicitor who is dealing with an estate might write to you to let you know of their involvement. However, they are not obliged to give you a copy of the will, or provide you with regular reports unless their client, the executor, agrees that they can do so. They can’t give you any legal advice on your options, because you are not their client. If they ask you to confirm or sign anything to finalise the estate, try to respond as quickly as possible, but make sure that you understand what is being done. The estate cannot be closed off without your cooperation.

If you are an executor, it’s important to understand your responsibilities. Your solicitor should advise you what you personally need to do, including your duties towards anyone claiming legal rights. If there is more than one executor, your solicitor should consult all of them before taking any actions. You should answer any queries or provide information promptly because unnecessary delays and reminders will increase the costs to the estate. If appropriate, you can report the progress to beneficiaries, to manage their expectations and minimise the chance of disputes.