Angus had been appointed as the executor of his late aunt’s estate.
Under her Will she had left estate to various nephews and nieces subject to a small cash legacy of £500 to him for acting as her executor. She had not left anything to her son, with whom she had lost contact many decades ago. Her estate comprised several thousand pounds worth of company shares and a bank account, along with a similar sum in cash and she also left a few credit card debts. As everything seemed to be quite straightforward, with no house to sell, he decided to save on legal fees by dealing with the estate himself.
However when he tried to sell the shares, by sending in a copy of the Will and death certificate, he was advised by the company registrar that it would be necessary to obtain Confirmation (Probate) from the Sheriff Court to prove his authority as executor. He therefore obtained and completed the application forms, sent them to the Court and in due course was presented with the Certificates of Confirmation. Unfortunately he failed to notice that he had mistakenly given his aunt’s date of death as the date when the death certificate was issued.
He duly obtained the Confirmation Certificates and sent these to the company registrars. He also closed the bank accounts, paid off his aunt’s credit card debts and then distributed the closing balances to the beneficiaries in accordance with the Will. Angus was very pleased to be making such good progress only a few weeks after she had died.
It was at this stage that Angus received several unwelcome surprises;
Firstly, a credit-card company wrote requesting settlement of a substantial sum, which exceeded the amount he had retained or was tied-up in the value of the company shares. Angus had been completely unaware of this debt.
Secondly, he received a letter from his aunt’s long-lost son requesting a share of the estate. Angus wrote back pointing out that the Will contained no provision for him.
Thirdly, one of the company registrars advised Angus that the company shares could not be sold as they had spotted that the date of death recorded in the Confirmation was not the same as that in the death certificate. When Angus asked the Sheriff Court to amend the Confirmation they told him that they were unable to do so.
Angus therefore decided to obtain some legal help. The solicitor he consulted advised him as follows:
1) He would have to persuade the beneficiaries to refund a substantial part of the sum already paid to them to meet the credit card debt. If they do not do so he would be personally liable for the debt. Had he not paid any of the debts for a 6 month period from the date of death any unknown debts which come to light after that date could not be claimed against him as executor.
2) His aunt’s son could in fact claim Legal Rights amounting to a one-half share of her net estate, even though he had not been named in her Will. Again this would entail him trying to recover some of the money already distributed to the beneficiaries to settle this claim, an if unsuccessful he would be personally liable to meet this claim.
3) Amendment of the Confirmation was possible only in the Court of Session in Edinburgh, which was a complex procedure costing several thousands of pounds. As Angus had made the error he could not claim those expenses from the estate but would have to meet them from his own resources unless the beneficiaries agreed otherwise. Unfortunately the beneficiaries were not sympathetic, having already made plans for their inheritance.
At this stage Angus decided to hand everything over to the solicitor, realising that dealing with his aunt’s estate would now cost more and take longer to complete than it would had he sought legal advice sooner. Furthermore, he could be personally liable for some of his aunt’s debts and the claim by her son. In addition to this, and to his embarrassment, the action in the Court of Session required that a copy of the application to amend the Confirmation be sent to each of the beneficiaries.
Angus’s problems are based on a number of real life cases which we have dealt with.
If you have any queries regarding the issues referred to in this article please contact our Private Client Department.
