What you need to do after a death

When a family member or close friend dies, it’s always a very stressful time. When this happens, there are some things you need to do right away – like arranging the funeral. You’ll have to let people know about the arrangements and deal with the financial elements involved – and when money is involved, problems are usually close behind.

We normally find out that someone has died when a relative or friend gets in touch with us. Usually, their first question is “Is there a Will?”. If we’re holding the Will, we’ll be able to check whether there are any special preferences for funeral arrangements. If the Will doesn’t instruct any special funeral arrangements or if there isn’t a Will, it’s left to those arranging the funeral to make all the decisions.

Funerals are expensive those arranging the funeral usually want to know that the deceased’s estate will be able to meet the funeral costs. There also might be a question about who has the authority to make the funeral arrangements and whether they’ll be able to recover all the costs incurred. If there’s a Will appointing an executor, then it’s clear that that person has the authority to make arrangements. However, if there is no will, determining who the executor should be might just be a problem.

Being a legal matter, there are some terms lawyers use which you should become familiar with:

The executor:

This is the person who will deal with the deceased’s estate. That means he or she (or they – frequently, a Will may appoint more than one executor) is responsible for all of the administration of the estate.

The estate:

This is a total of all of the property and assets the deceased person owned or was entitled to receive at the time of his or her death less any debts

Beneficiaries:

These are people or organisations who are entitled to share in the estate

Bequests and legacies:

These are sums of money or items of property that are given to or transferred as instructed in a Will

Legal Rights:

These are entitlements to share in an estate that the deceased’s spouse or civil partner has along with the children of the deceased. These Legal Rights apply whether or not there’s a Will.

Prior Rights:

If there’s no Will, the surviving spouse or civil partner is entitled to certain rights called Prior Rights. If the deceased was only co-habiting with his or her partner, that partner will not have any Prior Rights and would need to apply to the courts to seek an interest in the estate.

Confirmation:

This is the formal document that lists the entire estate and allows the executor to deal with the administration of the estate. You may have heard this called “Probate”. Probate is an English term and isn’t used in Scotland.

When you contact us, we’ll help and guide you through the entire procedure involved and inform you of progress at every stage in the process.

Whilst much of the work involved will be the same, there are some differences (and additional costs) if there isn’t a Will.

If there is no Will

We first of all need to find out who is entitled to be appointed as executor. When that person has been identified, we have to make an application to the courts to have that person formally appointed as the executor. This process takes time and there are court expenses and fees incurred during this process. An insurance policy also needs to be taken out to protect the beneficiaries in the event of any fraudulent actions by the executor. 
Whilst it may be clear who the executor should be, that’s not always the case and it might take some time to determine who should be appointed executor.

Until an executor is appointed, we can’t really find out the full extent of the estate.

It is important to note that if you were not married or in a civil partnership with the deceased and there isn’t a Will, you don’t have any automatic right to be appointed executor. Also, you won’t automatically be entitled to share in the estate.
 
We’ll also ask lots of questions about the deceased’s family because there are rules of succession we need to follow when there is no Will. This might also mean that those the deceased thought should inherit his or her estate don’t receive anything at all. This is likely to be especially true if the deceased and his or her partner were neither married nor in a civil partnership.

If there is a Will

If there is a Will it means the executors are clearly identified and there is no need to apply to court to have an executor appointed. We’ll be able to take instructions from the executor to start the investigation process to find out the extent of the estate.

Finding out what’s in the estate

Having dealt with the identity of the executor, our next task is to find out everything we can about the deceased’s estate – what property and assets were held and what debts are due. We need to find out if these things were owned outright by the deceased or if they were owned jointly. This means we usually need to write to a number of organisations – banks, building societies, insurance and pension companies, for example. We need to contact any organisation which might have information on the extent of the deceased’s estate. We also have to enquire about any gifts made by the deceased during his or her lifetime.

At the same time we need to find out what debts were due by the deceased at the time of his or her death.

Once we’ve completed our investigations about the extent of the estate, we’ll be able to calculate if there are any Inheritance Tax implications.

Finding out the extent of the deceased’s estate can take time and we keep the executor fully informed throughout.

Once all of the information is available, we’ll then prepare an Inventory of Estate. This lists all the property and assets as well as the liabilities.

Applying for Confirmation

Once we’ve completed the Inventory of Estate, we can then have the executor sign this and apply to the court for Confirmation.

Ingathering the estate

As the name suggests, the next stage is to contact those who hold property or assets of the deceased and, if they’re cash or capable of being easily turned into cash, ask them to send this to us. There may be items which are earmarked for someone specific and we’ll mark those and set them aside until we are able to send or transfer these to them. We’ll also pay the debts of the deceased from the proceeds we receive.

Distribution of the estate

Once we have gathered in the estate we can then begin the process of distributing it. If the deceased made a Will, this process is relatively straight forward. We’ll distribute the estate as the deceased set out. This will include dealing with specific legacies and bequests before then dealing with the residue of the estate (everything else that’s not specifically mentioned in the Will).

As we’re doing this, we need to consider the Legal Rights of any spouse, civil partner and/or children of the deceased.

If there isn’t a Will, the estate will be distributed in accordance with the law of succession. Again, we have to take into account Legal Rights and, if there’s a spouse or civil partner, we need to consider their Prior Rights.

Once we’ve worked all of this out, we present the accounts to the executor for approval. 
So, what do you need to do if someone has died? – Call us!

This might sound very simplistic and, perhaps, even crass. However, estates can very quickly become complicated and if you get in touch with us, we’ll explain everything in straight-forward language and give you the very best advice we can.

We’ll deal with the entire process – the straightforward as well as the complex - and keep you fully informed at every stage.

If someone has died and you’re involved with the arrangements and are not sure what to do, give us a call on 01369 702885 or email Euan Macdonald now.