The process of winding up an estate – from applying for confirmation to keeping the right records – is not as simple as it may sound online. But help is available.

When someone you know dies, there may be a temptation to deal with the estate as quickly possible - doing everything yourself in order to save on time and legal fees. The amount of information available online, especially via AI, may add to this temptation.

However, contrary to common assumptions, winding up an estate is not simply a form-filling or admin exercise. There are a number of technical legal processes involved, with a risk of delays or extra expense if you fail to comply with them.

Responsibilities and risks

As an executor, you have significant legal and financial responsibilities, including a legal duty to act in the best interests of the estate you’re winding up and the people who will benefit from it (the beneficiaries). In Scots law, this means you are legally bound to prioritise beneficiaries’ and creditors’ interests over your own.

If you don’t fulfil these duties as an executor, you may face legal challenges from beneficiaries, or be removed from your role by a court. You could even find yourself at risk of prosecution or financially liable for aspects, rights, or debts you’ve unwittingly overlooked.

All this means that with any executry, it’s worthwhile thinking carefully about the pros and cons of going it alone.

Applying for confirmation

There are two routes to becoming someone’s executor:

  • They may appoint you in their Will
  • You may be appointed by a court if there is no Will

With both routes, you’ll need to get ‘confirmation’ (the equivalent of being granted probate in England or Wales) in order to ingather and distribute the estate.

In practice, this means obtaining a certificate from the local Sheriff Court authorising you (and the other executors) to deal with the deceased’s assets. It’s certainly possible to apply for confirmation without needing the help of a solicitor. However, the processes involved mean that, except in the cases of small and simple estates, it’s not as straightforward as it may sound.

Identifying assets and liabilities

To obtain confirmation, executors must identify and correctly value all the assets and liabilities in a person’s estate. Ensuring accuracy here is key. In your application to the court, you’ll see a warning that, as an executor, you ‘may be liable to penalties or prosecution if you fail to make full enquiries and to include all property on which Inheritance Tax is payable’.

In other words, there’s a risk not only of failing to disclose information but also of failing to disclose information accurately. This can be challenging when people increasingly hold assets digitally or perhaps overseas, and where their liabilities may be unclear.

Executors will also need to arrange for any property title deeds to be examined to make sure that each property is correctly described and accounted for.

At each step of applying for confirmation, the court processes can be highly technical. For example, there’s a specific format for describing and listing all the assets in an estate on the correct forms. Yet, in estates with a value of greater than £36,000, the court will not provide any guidance to executors, nor provide feedback on why an application for confirmation is rejected.

Death and taxes…

A challenge in any DIY executry is how to assess the estate’s inheritance tax (IHT) position and ensure that allowances are being claimed. Without claiming all relevant allowances correctly, the estate may pay tax that could have been avoided.

However, IHT rules and allowances are complex, and every individual’s circumstances will vary. From April 2027, this is set to become even more complex when unused pension pots will also become subject to IHT. There are also tight deadlines to meet.

For example, to avoid interest being applied to any IHT due, payment must be made within six months of death.

Income tax and capital gains tax also regularly feature when dealing with an estate. You must therefore ensure that the correct taxes are paid to HMRC, where applicable, and to the correct timescale too.

Other challenges

Even with confirmation granted and taxes assessed, there may be further challenges, requiring careful legal handling. These could include, but certainly aren’t limited to:

  • Insolvent estates
  • How to handle estates with multiple beneficiaries or where beneficiaries need to be traced or verified
  • Estates where spouses or children have been excluded from the Will, notwithstanding their right to claim legal rights against the net moveable estate
  • A Will being contested
  • How to document and keep records of each step of the executry to protect yourself legally and financially

Weighing up the risks

When someone dies, it’s certainly possible to do some of the administration yourself. For example, the registrars in Scotland offer a useful (but optional) service called ‘Tell Us Once’ which means that organisations such as the Department for Work and Pensions, HMRC, and the local Council are automatically informed of the death. This saves them having to be contacted separately and is designed to simplify the process of registering a death.

But when it comes to being an executor, be aware of the risks of using online and DIY toolkits. There’s no legal requirement for an executor to seek professional advice, but you are legally required to make sure you comply with your legal duties. In every case when the risks outweigh your knowledge, it’s worthwhile considering professional advice from a Scottish solicitor.

At Lindsays, we have an experienced and friendly team who are well versed in the intricacies of winding up estates. Whether or not there is a Will, and whether or not our firm holds it, we’re on hand to help.