1st December 2021

Estate Administration: 5 Common Misconceptions

  1. “I am appointed as an Executor so I have to act”
    If you are appointed as Executor under a Will you are not obliged to accept the role. If you do not wish to act, the process to be carried out depends upon whether you are appointed as the sole Executor or, instead, are appointed to act with someone else. If you are appointed as:

    – Sole Executor: you firstly need to “assume” a new Executor and then you may resign from the role. This is achieved by both you and the “assumed” Executor signing a deed called a “Deed of Assumption and Conveyance incorporating Minute of Resignation”; or
    – Co-Executor: you may sign a simple “Letter of Declinature” indicating your intention to decline the role, leaving the remaining appointed Executor(s) to act.
  1. “My spouse/civil partner died without a Will; I automatically inherit the whole estate”
    A spouse/civil partner does not automatically inherit the intestate estate; this is determined (i) by the assets in the estate and their value; and (ii) the application of the laws of intestate succession in Scotland, summarised as follows:

    – Prior Rights for the benefit of the surviving spouse/civil partner. Prior Rights include the deceased’s principal residence up to £473,000 (provided the surviving spouse/civil partner was living there at the date of death), furniture up to £29,000 and a cash sum of either £50,000 (if there are surviving children) or £89,0000 (if there are no surviving children);
    – Legal Rights which the spouse/civil partner and children of the deceased (or the children of any predeceasing child) are entitled to, from moveable estate, after Prior Rights are satisfied; and
    – Free Estate which is the remaining estate after Prior and Legal Rights have been satisfied. The specific order of who may inherit the Free Estate is set out in the intestacy rules.
  1. “The house will pass automatically to my surviving spouse/civil partner; I don’t need to do anything about it”
    Not necessarily. Title to a property is most commonly held either (a) solely, (b) jointly and to the survivor or (c) jointly, in “pro indiviso” shares. The title deeds must be examined to establish whether the formal process of obtaining Confirmation (the Scottish equivalent of “Probate”) is required in order to legally transfer the title.
  1. “The utility supply/home insurance will stop if I notify the bank of the death”
    For utility accounts and home insurance held in a deceased’s name, the suppliers and insurance providers must be notified of the death at the earliest opportunity. However, these are often paid by direct debit and, once notified of a death, the bank will “freeze” the accounts so no further direct debits are paid. Alternative arrangements must therefore be made to ensure that the utilities and insurance cover continue during the estate administration period. There are options available to Executors which can be discussed during the estate administration process.
  1. “Estate administration is a quick, straightforward process”
    Timescales for dealing with estate administration vary greatly. There are many factors which influence timescales, such as the type and value of assets (including foreign assets) and whether inheritance tax is payable. The process takes many months, sometimes years, to complete. Additionally, estates should not be finalised prior to 6 months from the date of death (the “6-month rule”) as this is the time within which any debts/claims may be intimated to the Executors and, if the Executors have ‘paid out’ the estate before 6 months has passed, they will be personally liable for any such debts arising.

If you require any advice on this or any other matter involving executry administration, please contact the Blackadders Private Client and Executries Teams, working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Millie Griffiths, Solicitor
Private Client
Blackadders LLP




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