The death of a relative or close friend is a difficult time. And there are also the immediate practical questions about getting a death certificate; registering the death; and arranging the funeral which have to be dealt with in the midst of that difficult time. This Note however does not dwell on those initial practical matters: it focuses on outlining some essential administrative matters that follow on thereafter. There is a useful guide however covering the ins and outs of the initial practical steps in the Scottish Government Publication “What to do after a death in Scotland” (8th edn.) which can be found here: What to do After a Death in Scotland … Practical Advice for Times of Bereavement: 8th Edition
In essence, the usual initial practical steps involve:
- the doctor’s (or doctors’ where there is to be a cremation) issuing a death certificate;
- that death certificate is then used as the basis for registering the death with the “Registrar of Births, Marriages, and Deaths”;
- the death certificate which the Registrar issues is taken to the undertaker’s so as to arrange the funeral; and
- if there is a will, then its terms need to be checked to see if there are any wishes concerning the funeral.
After the Funeral
If there is a will
If there’s a will this will usually name one or more people as “executors” i.e. those with the responsibility for administering the deceased’s estate and paying out the beneficiaries. Such an executor is called an “executor-nominate”.
If there is no will
If there is no will the law prescribes who gets what as far as the deceased’s property goes. In such a case one or more of those beneficially entitled to the property (or a share of it) have to apply to the court to be appointed as an executor: such an executor is called an “executor-dative”. Where there is no will, the deceased is said to have died “intestate” and his estate is distributed amongst relatives in accordance with the “laws on intestacy”.
Ascertaining the deceased’s estate – and obtaining “Confirmation”
Unless all the deceased had was a bank account with less than £5,000 in it (or various bank accounts each with less than £5,000) the rule is that executors (whether executors nominate or executors dative) must apply to the court for “Confirmation” to the deceased’s estate. (In England this is referred to as “Probate”.) This is an official court document which is issued by the court and then sent by the executors to the parties holding the deceased’s assets as evidence of the executors’ authority to deal with and uplift the deceased’s assets.
Essentially it comprises a full list of everything the deceased owned at date of death. It all needs to be individually itemised and valued – as at date of death – including, for example, interest accrued on bank and building society accounts up to date of death. Part of the reason for requiring such detail is that the form is a dual function form in that it serves:
- partly as a means of “vesting” all the deceased’s property into the name of the executors – for the purposes of administration; and
- secondly it operates as a form of “tax return” for inheritance tax (“IHT”) purposes so that the Revenue (“HMRC”) can check whether any inheritance tax is payable and, if so, how much.
As regards that second IHT function any lifetime gifts made by the deceased may have a knock-on effect as regards the amount of inheritance tax payable. So the relative forms required to obtain “Confirmation” ask a whole series of questions about any lifetime gifts.
Completing the necessary forms in order to obtain “Confirmation” from the court is often quite a laborious and detailed operation. There is no requirement that the executors instruct a solicitor to deal with these matters. But in any estate of any size they may well decide to do so.
Once the necessary forms have been completed and lodged and “Confirmation” successfully obtained from the court the executors can then proceed:
- to uplift the deceased’s assets;
- pay the deceased’s debts;
- and implement the deceased’s will (or distribute the estate under the laws of “intestacy” where there is no will); and
- produce an accounting of having duly done so for the beneficiaries’ approval.
All this takes quite a bit of time depending on the size and complexity of the deceased’s estate.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Allyson Gilchrist: ag@mitchells-roberton.co.uk
