Scots and English Law can differ in some very crucial ways. If you split your time between the two countries, or you have family across the border named in your will, it is incredibly important that you fully understand the differences that may arise when it comes to executing the will. Find out more about this below.
The First Steps
Whenever someone passes away, their loved ones will need to collate any assets, settle liabilities and debts, and distribute the estate of the deceased. This is primarily carried out by someone named in the person’s will who takes the title of executor. It could be just the one, or it could be up to four. This is the same across both English and Scots law. Most often, someone will appoint two executors to their will to ensure that if one of your executors passes away before you do then there is still someone to act in your estate. However, in Scotland an executor can be over 16 while in England they must be over 18
If there is no will, the laws of intestacy will determine inheritance. The estate will usually be divided up between the deceased’s spouse or partner, and any living children.
Once the executors have established the details of the estate, they need to apply to the courts for permission to distribute it. In Scotland, an application is made to a Sheriff Court for Confirmation. In England, executors instead apply to the English courts for a Grant of Probate.
Challenging the Will
Once the will has been read, there is a chance that those not named in the will can challenge it to receive part of the estate. In Scotland, spouses and children have a claim on an estate even if they are not named in the will or they feel it does not provide for them in a satisfactory manner. These are known as Legal Rights.
In England, any spouse or child who feels they have been left out of the will must make an application to the court. This must be done within six months of the Grant of Probate being issued to the executors and must make a solid case as to why the individual or persons feel that they have been left out of the will.
If either Legal Rights come into play, or the courts find reason to support those who have been left out of the will in England, the executors will have to make accommodations for them when dividing the estate.
It is important to note that in Scotland if you are not married then inheritance from your partners estate is not automatic. At present, a cohabitee must make a claim through the courts within 6 months of the death of their partner. If the application is not lodged in the court within the 6 months then the cohabitee loses the right to make the claim. Therefore, it is vital if you are not married to ensure you have a Will to ensure that your partner is provided for should you pass away.
What to Do if You are an Executor in a Different Legal System
When you are named as executor of a will under a different legal system, it can be incredibly confusing. You may be dealing with different steps and legal jargon compared to potential prior experiences as an executor. One of the best moves you can make is to find a local solicitor close to where the deceased live who can help you as you divide the estate.
MM Legal is able to offer impartial advice for Scottish executors looking for help with an estate. Our team of solicitors will be able to help you with any issues that may arise as you execute a loved one’s estate. Get in touch with Erika Watt today to find out more.