At The Glasgow Law Practice, we understand that dealing with a loved one’s estate can feel overwhelming, particularly at an already difficult time. The executry process involves a number of legal terms which may be unfamiliar.
Below is a straightforward explanation of the most common legal terms:-
Executry
The term used in Scotland to describe the legal process of dealing with a person’s estate after they die. This is often referred to as “Probate” in England.
Executor
The person responsible for dealing with the estate of someone who has died.
There are two types of Executors:
- Executor Nominate – the person appointed in the Will.
- Executor Dative – where there is no Will in place the Court appoints someone to deal with the estate, usually the closest living relative.
The Executor’s duties include registering the death, securing the property, determining the estate assets, applying for Confirmation, paying debts and distributing the estate to the beneficiaries.
Confirmation
Confirmation is the legal document issued by the Sheriff Court which gives the Executor authority to deal with the deceased’s estate to include the sale/transfer of the property and the ingathering of the estate funds.
Estate
Everything the deceased owned at the time of their death, including:
- Property
- Bank accounts
- Investments
- Personal belongings
- Share holdings
The estate also includes any debts that the deceased had at the time of their death.
Beneficiaries
The people (or organisations) who are entitled to benefit from the estate.
If there is a Will, the beneficiaries are those named in the Will. If there is no Will, Scottish law decides who inherits.
Intestate
If someone dies without leaving a valid Will they are described as having died “intestate”. In these circumstances Scottish law determines who inherits.
Bond of Caution
A specialised Insurance Policy required when someone dies without leaving a Will (intestate). The policy is designed to protect beneficiaries from the incorrect distribution of the estate.
A Bond of Caution is not required where the value of the estate is less than £36,000 or where the estate passes in its entirety to a surviving spouse/civil partner.
Legal Rights
In Scotland a spouse/civil partner and children are entitled to claim a share of the deceased’s moveable estate (for example cash and bank accounts). This entitlement is known as Legal Rights.
Legal Rights do not apply to heritable property (such as land or buildings).
Legal Rights are applicable whether or not there is a Will.
Prior Rights
If someone dies without leaving a Will and they are survived by a spouse/civil partner, that spouse/civil partner may be entitled to claim certain amounts from the estate. These entitlements are known as Prior Rights.
Inventory
A detailed list of all assets and their values at the date of death. This is submitted to the Sheriff Court as part of the Confirmation application.
Inheritance Tax
A tax that may be payable on the estate, depending on its value and circumstances. Not all estates are liable to Inheritance Tax.
The six months rule
The estate funds should not distribute until a period of six months has passed since the date of the death. This is to allow persons/companies with a claim on the estate to make their claim known.
Distribution
The final stage of the executry process where the remaining estate (after debts and taxes have been paid) is paid out to the beneficiaries.
