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The experience of losing a loved one is a very emotional one for surviving family. The situation can be complicated by the need to sort through, organise and distribute the property that they leave behind. This is known as the Executry process and will normally be carried out by the Executor, the person the deceased identifies in their Will for carrying out their wishes.

The team at Innes & Mackay appreciate that people may find the prospect of having to fulfil their responsibilities as the Executor of a loved one’s estate very daunting, not least when they are still attempting to cope with their loss. If you need help in understanding the Executry process, our team can help.

Putting the wishes of a deceased into practice

The job of the Executor is to follow a process, the first step of which is to look at the terms of the deceased’s Will. This document will set out what the Executor is to do with the deceased’s property.

Assuming that the deceased has left a Will, the next stage in the process for the Executor is to organise for ‘Confirmation’, sometimes described as ‘Probate’. The name is not overly important, but it involves contacting the Scottish courts to have their permission to begin the administration of the deceased’s estate according to the terms of their Will. It is important to understand that there are different kinds of Confirmation that can be asked for, which will depend on the value of the estate that a loved one has left behind.

In receiving an application for Confirmation, the courts will look to be satisfied that all of the necessary paperwork has been completed and that everything is in order to allow for the deceased’s estate to be distributed according to their Will. It is only after Confirmation has been granted that an Executor can begin to follow the terms of the Will.

When there is no Will

It is important to keep in mind that a Will is essentially a guide for the Executor as to what they are to do with a deceased’s property. Where there is no Will, the Executor will in effect have no legal guidance on what the deceased intended to be done with their estate. As a result, the law will impose a new set of rules for dealing with a deceased persons’ estate called the rules of ‘intestacy’.

The rules of ‘intestacy’, i.e. when a deceased has left no Will, also provide for a process that is to be followed. However, the result of following these rules can be slightly different to what a deceased would have otherwise intended:

The first thing to be done is for the appointment of someone to organise the deceased’s estate. Given that there is no Will to specify who this person will be, it becomes the responsibility of the Scottish courts to appoint this person. Their role will be the same as an Executor’s, but they are called an ‘Executor Dative’.

The next stage of the intestacy process is for the Executor Dative to begin to administer the deceased’s estate. It is important to understand that the Executor Dative is required to organise the estate according to a strict set of rules: their first priority will be to clear any outstanding debts on the estate e.g. mortgages, loans etc. It is only after they have done this that they then attempt to distribute the remaining estate amongst a deceased’s surviving family members.

Surviving family members’ rights under the rules of intestacy are particular. An Executor Dative must cover each in turn, which can have consequences for whether or not certain people will be able to benefit from an estate at all.

The Executor Dative will first attempt to satisfy a set of rights that is owed to a deceased’s surviving spouse or partner. These are known as their ‘Prior rights’ and they entitle them to, amongst other things, the value of the deceased’s home up to a certain limit and a proportion of the furniture in that home, also limited to a certain value.

Having satisfied the ‘Prior Rights’ of a deceased’s surviving spouse or partner, the Executor Dative must then attempt to observe another set of rights that they enjoy. These are known as their ‘Legal Rights’, entitling them to a share in any money that the deceased left behind. It is important to understand, however, that they may not be entitled to all monies left behind by the deceased where there are also surviving children to account for.

The last step in the process for an Executor Dative is to distribute any remaining property in a deceased’s estate. This is known as the ‘Free Estate’, which tends to be given to other surviving family members. However, it is important to point out that it is possible for the satisfaction of Prior and Legal Rights to result in there being no property left over to form a Free Estate.

Specialist Executry and Probate Lawyers Inverness

The Executry process can be difficult to understand, not least because of the amount of paperwork that tends to be involved: court correspondence; liaising with banks and other companies that a deceased owe money to, or is entitled to money from. At Innes & Mackay, our friendly team of Executry lawyers understand the problems clients face in attempting to follow the Executry rules. We are often asked to help Executors complete their job in administering a loved one’s estate, and to advise families when a loved one died without a Will. If you are in need of assistance from a team of solicitors that prides itself on providing easy to understand, practical legal advice on Executries, please contact our team.

 

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