A death must be registered within 8 days at the Registrar of Births, Deaths and Marriages. The registration of the death may be made in the Registrar’s Office of the District either where the deceased lived or where the death took place, if different.
Registrars now prefer an appointment system for notification and registration. To Register the death, you will need the Medical Certificate of cause of death (this is obtained from the doctor or hospital certifying the death) and as much of the following information about the deceased as possible:-
The Registrar will offer the “Tell Us Once” system and we recommend using that to ease administration at a difficult time. Tell Us Once is a service that lets you report a death to most government organisations in one go.
When you register the death the Registrar will:-
Before you use Tell Us Once you will need the following details of the person who died:-
The Government website indicates that you need permission from the next of kin, Executor, Administrator or anyone who was claiming joint benefits or entitlements with the person who died, before you give their details.
Tell Us Once will notify:-
After registration, the Registrar will give the person registering the death the following:-
It is the Executors’ responsibility to ingather all the assets of the deceased, i.e. “the Estate”, as soon as practicable. However, before Executors ingather the estate, “Confirmation” will normally be required from the Sheriff Court, to establish the Executors’ legal authority to deal with the estate.
If no Will has been left, which is referred to as an “intestate estate”, it may be necessary to Petition the Sheriff Court to appoint an Executor.
Once Confirmation (called “Probate” in England) has been obtained and the estate ingathered, the next duty of Executors is to pay any debts of the deceased, including any Inheritance Tax. Consideration can then be given to paying any legacies to beneficiaries named in the Will.
Finally, the Executors pay the “residue” of the Estate i.e. what is left after debts and legacies are met, to the beneficiaries.
In all these duties, the Executors can be assisted by any professional advisers they choose to appoint. In most cases, this is a firm of solicitors.
Certain small estates, generally when the total value of the estate is below £30,000 in value, may be administered without obtaining Confirmation. Generally Banks, Building Societies and Insurance Companies can provide indemnity forms for completion by Executors or, in some cases, by the next of kin. It should be noted however that each financial institution has its own limit for waiving the need for Confirmation.
Where the value of the estate does not exceed £36,000, the Sheriff Clerk’s Office can advise and assist an Executor in obtaining Confirmation. The Sheriff Clerk will not charge an administration fee for this service however, Confirmation Dues are charged by the Court in all estates where Confirmation is required.
McSherry Halliday can assist in the administration of even the smallest Executries.
The first meeting with the solicitor normally takes place shortly after the funeral. However, if there are matters of pressing importance, an earlier meeting may be necessary.
You should bring to the first meeting as much of the deceased’s papers and documents as can be located. In particular, the following information and/or documents are useful:-
If you are not able to identify all the appropriate paperwork then McSherry Halliday will be able to assist you in the investigation of any missing items.
The Executors will be asked for proof of identity. This is a requirement of the Law Society of Scotland for the purposes of money laundering regulations. We shall issue a link to you via email through a portal, Amiqus, for you to upload your photographic and address identification.
The administration of an Executry estate comprises four stages, namely:-
(2) Ingathering the assets
(3) Payment of debts and legacies
(4) Payment of the residue of the estate
(5) Investigation of the Estate
After obtaining the paperwork referred to in Section 4., we will write to all those who hold assets of the deceased, e.g. banks, building societies and insurance companies, to obtain a current value of the assets in the estate.
If a house is owned, it may be necessary to obtain a professional valuation by a surveyor. It may also be necessary to obtain a valuation of the deceased’s furniture, jewellery and personal effects. Any stocks and shares owned by the deceased will require to be valued by a stockbroker. A fee is payable for such valuations.
Professional valuations are required where either the estate is likely to attract Inheritance Tax or the residue is to be divided amongst a number of different residuary beneficiaries.
Once the investigation is complete, an “Inventory” of the estate (i.e. a list of all the assets and liabilities of the deceased as at the date of death) is drawn up for signature by one of the Executors.
The Inventory serves two purposes:-
In estates where Inheritance Tax is payable, it is necessary to forward the Inventory to the Capital Taxes Office in Edinburgh (Inland Revenue) before application for Confirmation can be made to the Sheriff Court. The Capital Taxes will initially return the Inventory as quickly as possible to enable Confirmation to be obtained, however they may raise queries at a later stage.
Any Inheritance Tax payable on the estate at this time must be paid to the Capital Taxes Office with the Inventory, prior to lodging with the Sheriff Court for the issuing of Confirmation and before the Executors can deal with the assets of the deceased. There are various means in which such Inheritance Tax can be paid to the Capital Taxes Office and McSherry Halliday can advise you in this regard.
Even when Inheritance Tax does not require to be paid, the Inventory is forwarded by the Sheriff Court to the Capital Taxes Office for consideration by them and the Capital Taxes Office has a period of 60 days from the date Confirmation is granted by the Court in which they can raise any queries they may have about the assets of the estate and on some occasions may request that professional valuations be obtained for property and personal effects.
Where no Will has been left and, under the laws of intestacy the estate is passing to a beneficiary other than a surviving spouse, a Bond of Caution requires to be obtained from an insurance company. Caution is an insurance which has to be put in place in order to safeguard the interest of the beneficiaries. The insurance company will insure the whole of the gross value of the estate and the premium will be based on the value of the estate together with the number of beneficiaries. The cost of this insurance will be charged against the estate. Confirmation will not be granted by the Court unless the Bond of Caution is exhibited along with the completed Inventory.
(2) Ingathering of Assets
Once the Inventory has been lodged with the Sheriff Clerk, Confirmation will be issued, together with a series of “Certificates of Confirmation”. The Certificates are thereafter sent to the various banks, building societies etc. with whom the deceased held assets, together with the appropriate withdrawal or discharge forms signed by the Executors to enable payment.
(3) Payment of Debts and Legacies
The next duty is to deal with the payment of the debts of the deceased. Normally this would include all funeral expenses, general domestic accounts of the deceased, loans etc. It should be noted that most banks etc. are quite willing to pay the Funeral Account when the account is rendered, providing sufficient funds are held by them on behalf of the deceased.
When the Inventory for Confirmation is lodged with the Sheriff Court and Confirmation is issued, the Benefits Agency and Local Authority will obtain a copy of the Confirmation. The Court Books of the Sheriff Court are public records and are open for inspection. The Benefits Agency check their records to ascertain whether or not too much Income Support or other benefit has been paid (i.e. if the deceased has capital over the relevant limit). If so, a possible claim exists against the estate. A claim can normally be made up to six months from the date of death. It is however possible to approach the Benefits Agency or Local Authority to seek their confirmation that no such claim will arise.
Creditors have a period of six months in which to lodge a claim against the estate, therefore it is our firm’s practice that estates are not distributed until the expiry of the six month period from the date of death. Should a claim be made against the estate within six months and the residue has been distributed then the Executors would be personally liable. If we are requested by the Executors to distribute the estate within the six months then an appropriate Discharge and Form of Indemnity will require to be signed by the Executors.
After payment of all the deceased’s debts, the Executor can pay any cash or specific legacies provided for in the deceased’s Will. We will normally make a payment to the legatees of the amount of the legacy, or arrange for delivery of the items bequeathed, and issue a Form of Receipt, acknowledging such bequest, to be signed and returned by the person receiving the legacy.
(4) Payment of Residue
Following payment of the deceased’s debts and any cash or specific legacies, the Will will provide how the residue of the Estate is to be distributed to the residuary beneficiaries.
At this stage, an Executry Account/Statement of Intromissions is prepared detailing all the assets, debts/liabilities and legacies in the estate. The Account is approved by the Executors. From this Account, the exact value of the Residue can be established and payments thereafter made to the residuary beneficiaries. These payments will normally be organised by us and a relevant Form of Receipt and Discharge is obtained from each beneficiary.
The Inheritance Tax (IHT) threshold is currently £325,000 for a single person. This means that the value of the deceased’s estate has to be above the sum of £325,000 before inheritance tax is due to be paid. Between spouses/civil partners a combined threshold of £650,000 may be applied. These thresholds may be increased if the deceased owned a home, or a share of a home and the deceased’s direct descendants such as children or grandchildren inherit the home, or a share of it. The additional home allowance that may apply is as follows:-
For deaths in the tax year
2017/18 – £100,000
2018/19 – £125,000
2019/20 – £150,000
2020/21 – £175,000
The above allowances can be carried over and perhaps “doubled” for spouses/civil partners.
IHT will be calculated on all the deceased’s assets after deduction of debts and liabilities and which exceed the threshold and 40% tax will be exercised on such assets. (i.e. if the deceased’s assets exceed the threshold limit by £10,000 the estate will be liable to pay £4,000 in tax). It should be noted however that depending on how a Will is written, it may be the legatee or the residuary beneficiaries who are liable to settle the Inheritance Tax.
In estates which attract Inheritance Tax, it is necessary to agree the amount of tax due with the Inland Revenue through the Capital Taxes Office. This process may involve considerable correspondence concerning valuations of assets and related matters. Regrettably, this can create delays, however McSherry Halliday will always strive to complete the administration as quickly as possible and keep you informed of progress.
Conclusion of Administration
Once the Inheritance Tax has been finalised and the balance of residue paid to the beneficiaries, the administration has been concluded. Our File of papers is retained for many years in case of any query arising in the future, regarding the estate.
Under Scots Law, the surviving spouse or civil partner and the children of the deceased have certain rights on their estate. These are called Prior and Legal Rights.
When there is no Will, a surviving spouse/civil partner is entitled to Prior Rights and these are as follows:-
A right to the deceased’s dwellinghouse up to the value of £473,000
Furniture/personal effects up to the value of £29,000
If there are no children, cash to the sum of £89,000
If there are surviving children, cash to the sum of £50,000
Whether there is a Will or not, the surviving spouse/civil partner and children are entitled to Legal Rights and these are as follows:-
A surviving spouse/civil partner is entitled to a one-half share of the net moveable estate if there are no surviving children. If there are surviving children, the right reduces to a one-third share of the net moveable estate.
Children are entitled to share in a one-half share of the net moveable estate if there is no surviving spouse/civil partner. If there is a surviving spouse/civil partner this right reduces to share in a one-third share of the net moveable estate.
Legal Rights claims only apply to what is termed “moveable” estate. This includes banks and building society balances, shareholdings and investments, household contents and furniture, cars etc. but excludes land and buildings.
As part of the administration, McSherry Halliday will require to make enquiry as to the existence of legal rights and will seek and obtain discharges of these rights, if appropriate.
These rights can be claimed for up to 20 years after the date of death.
It is McSherry Halliday’s practice to submit our file to external Law Accountants for assessing of our fees. This means that the file is independently assessed to establish a fair charge for the work undertaken. A charge is made by the party assessing our files and is normally paid from the estate. The file is assessed and charged at the conclusion of the administration but if the estate is complex an interim fee may be taken. Fees are payable from the estate including all the costs of administration.
It is difficult to estimate what the administration fees may be for a particular estate. A small estate of low or moderate value can often be as complicated, or more complicated, than an estate of a larger value.
The following table may serve as a guide to the estimated cost for the administration of an estate by McSherry Halliday:-
Gross value of estate (£) Estimated cost of administration (to which VAT at the prevailing rate will be added)
0 – 20,000 between 2 and 6%
20,001 – 50,000 between 2 and 5%
50,001 – 100,000 between 2 and 4%
100,001 – 150,000 between 2 and 3.5%
150,001 – 200,000 between 2 and 3%
200,001 – 500,000 between 1.5 and 2.5%
500,001 + depends on circumstances
Please note the above table is not binding but is simply an approximate indication of fees likely to apply. The actual fee may be higher or lower depending on the circumstances of the estate e.g. if there is more than one Executor or if the estate is of particular complexity.
McSherry Halliday are often asked how long the administration of an estate will take. Unfortunately, it is impossible to accurately predict the timescales of completion of an executry; timing in these matters is dependent upon a number of factors beyond our control such as:-
It is often possible however to complete the administration within the following timescales:-
Type of estate Likely completion time
Total value of assets greater than £100,000 and not subject to Inheritance Tax 6 months
Larger estate (over £300,000) or subject to Inheritance Tax 9 to 12 months
Complex estate including assets requiring specialist 12 to 18 months valuations (e.g. Private Company shares)
McSherry Halliday are 1 of only a few legal Firms in Scotland authorised and regulated by the Financial Conduct Authority. Our Firm registration number is 113475. Our skills and expertise in this field provide Executors and beneficiaries access to financial advice throughout the winding up of an Estate and our Independent status ensures an unbiased approach to the advice process.
Often advice and recommendations are sought on a whole range of different types of investments and pensions with a view to determining their future suitability for beneficiaries. We can also provide tax guidance on the retention or disposal of assets and have the relevant skills and experience in setting up Trust arrangements where required and appropriate.
Our service can extend to managing portfolios on a non-discretionary basis and the level of that service will be bespoke to each client’s personal requirements. The cost of our services are communicated and agreed in advance and a detailed analysis of circumstances, risk profile and objectives is carried out in the first instance.
With the requirement for some degree of financial advice common in most Executries, McSherry Halliday are ideally placed to provide a fully Independent service to Executors and beneficiaries without the need to involve third parties.
If you have a query or wish for some advice please make an enquiry or contact one of our offices directly and a member of our team will be happy to assist.