When someone dies, it is commonplace for a family member or loved one of that person to contact the firm of solicitors that prepared their will. If the person contacting the lawyers is an executor under the will, the lawyers will usually then provide them with a copy of the will, if they do not already have one.
Probate
In most cases, the executors appointed under the will are required to instruct a lawyer to act in the administration of the estate and to obtain what is widely known as "probate" (called "confirmation" in Scotland). Probate (or confirmation) is generally required in Scotland when a deceased person's executors require title to uplift the assets of the estate, before distributing them in accordance with the will. For example, if the deceased person owned an interest in a property, the executors would usually require a grant of probate in their favour before they can sell or transfer that interest.
In order to obtain probate in Scotland, the executors are required to investigate the extent of the deceased's estate, before using this information to compile an inventory of assets and complete an application for confirmation. The executors may also need to prepare an inheritance tax return and pay the resultant tax, depending on the value of the estate and the availability of any reliefs and exemptions. Once probate is granted, it is the executors' responsibility to distribute the assets in accordance with the will and to attend to matters such as the payment of debts and accounting to the beneficiaries of the estate.
Instructing a probate lawyer
The steps required by the executors will ordinarily be carried out by a probate lawyer, on the instruction of the executors. This instruction will often follow that initial contact between the executor and the lawyer following the death.
There is a common misconception, or perhaps a well-mannered sense of obligation, held amongst a lot of those appointed as executors under a will. The mistaken belief is that the executors must instruct the lawyer that prepared or holds the will to act for them in obtaining probate and administering the estate. In reality, the executors of the estate are free to instruct any probate lawyer they wish. The executors are under no obligation to use the same lawyer that was used by the deceased, particularly when the nature of the estate might require a level of expertise not offered by that lawyer.
In a world of increasingly complicated financial products and tax regulations, dealing with the affairs of a loved one can be both technically challenging and emotionally demanding. It is therefore important for executors to consider the options available to them when instructing a probate lawyer and to make a decision based on achieving the best possible results for those who will benefit from the estate. There are various opportunities following death when it comes to matters such as tax planning, asset protection and looking after vulnerable beneficiaries. It can be extremely valuable for executors to seek the best advice available. If the executor is wondering how much the probate would cost, they can visit our probate calculator for an easy and transparent estimate of cost, including legal fees, court fees and more.
Instructing Brodies
At Brodies, we can offer executors expert guidance in obtaining probate, administering estates and making the most of any opportunities that may arise along the way.
No matter the size of the estate, our highly skilled team of probate lawyers and executry practitioners can steer executors through the steps required to manage a deceased's affairs and put their loved ones at ease. Our team apply both skill and empathy during what can be a very difficult time.
For more information, please do not hesitate to contact a member of our executry team.
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