Probate

[swaninbay]

My Dad died recently, the moveable assets of the estate are about £200000. Involving premium bonds, shares, cars, and cash. And there's a final pension payment in limbo that didn't reach his account in time. Everything was left to my Mum, but we children plan to use Scots law rights to take a third of the moveable assets now. My question is should we use a solicitor to do everything for us, or is it possible to do it ourselves. Three executors, me, my brother and my mum. I just don't know how complicated it will be to do it ourselves.

It's not probate, it's confirmation. And in my experience dealing with a relatively straightforward confirmation, yes you will need help for something more complex.

It’s called confirmation here in Scotland and you’d be wise to use an independent solicitor given you are an executor.

Isn’t the usual route where parties are in agreement to do some form of variation to provide for assets to be distributed to offspring.? In my experience, a solicitor would draw this up for you.

Are you not on good terms with your mum? It’s quite aggressive / antagonistic to go for legal rights rather than respecting the will. I suspect this will prove more expensive and require a solicitor too, particularly if contested by your mum.

I would use a solicitor - we did for a more straightforward situation and found it difficult enough even with a solicitor doing the formal submission and chasing us for anything specific needed. and while I think you'll find advice online I don't think you'll find the kind of detailed advice you need to do something like this.

and i agree with the comment above that using the legal rights process seems a more "aggressive" route. if you're doing that in agreement with your mum to avoid future IHT liability I think you should get advice because there may well be an easier route.

Mum can’t contest it if the children claim. You can’t disinherit children in Scotland despite the content of a Will. It’s only for moveable assets though. It’s not something to do lightly though. It can and likely will destroy any family relationships unless there is an agreed reason for doing so.

I did my mum's confirmation myself in January. There's a guy called Buddy9 on the MSE probate forum that will talk you through the C1 form if the info you need is not already there. We were quoted £265 per hour for solicitor and £195 for paralegal.

This isn’t about preparing confirmation. It’s about legal rights.

I’m not sure this is the case. It’s an automatic right for children so not an aggressive act. You have to formally relinquish your right to receive the money in order not to get it!

Is your mum on board with this? Doesn’t she need the money for herself in later life?

can’t she just gift you your share?

When my dad died, everything was left to my mum (and vice-versa) - and then on the 2nd death it passed to us children.

It’s very unusual to contest a will like that- and I certainly would never have dreamed of it - is there any particular reason for that, OP?

In Scotland this is an automatic right for children. You do not have to contest the will. You have to formally opt out if you don’t want the money.

This isn't a variation: it's a legal right in Scotland, no matter what is in the will. Children are entitled to one third of the moveable assets.

It's not necessarily aggression - it can be a way of stopping the money from being swallowed up by care fees.

Yes, there's a form letter that solicitors send out.

When DH died, our solicitor wanted to do this. I refused. I didn't want the kids to think that I was trying to get their money. Instead, he sent a letter with the cheque. I never saw the letter, but I believe that it said something like "If you cash this cheque, you accept that this is your legal entitlement."

To answer the OP's question, I was my husband's executor, but using a solicitor to sort out the confirmation and the legal rights kept me right at a stressful time.

I gave the solicitor the info about assets and spoke to the bank etc, but the solicitor did the rest.

@Mammut- I’m aware of that, and am also Scottish & have dealt with both my parents estates, as an Executor.

My parents left everything to each other on the first death, then us children on the 2nd and I would never have challenged that as it was their wishes.

I’d be interested in why OP is considering this; IME it’s an unusual situation.

As far as I understand it executors have to make sure that children know that they have this legal right. My recent experience was that the solicitor sent out a letter stating the entitlement and asking if the children wanted to take it or not. The solicitor was clear (to us) that it had to be a legal process.

Swallowed up by care fees?! What better use is there of someone ‘s cash than looking after themselves in old age - rather than the overburdened taxpayer having to do so?

I’m imagining it could be because the mother has dementia and will now need a care home. It’s likely so the late fathers money won’t be used for this.
But I could be wrong

Yes, that's my understanding.

I have a neighbour whose husband needed dementia care. Personal care in Scotland is supposedly free, but when a care home is required you have to pay what the social workers call 'hotel costs'.

You'd think that the family would be given some choice in the facility used. In actual fact—in our area at least—the facility (whether council or private) is the one designated by the council. The family has no say in it.

My neighbour finished up with very little to live on because the council took all of her husband's pension plus a fee which my neighbour had to pay each month.

More than 10 years ago, my mother needed respite care while I was undergoing medical treatment.

The "hotel cost" for a care home—not a nursing home—with basic accommodation and facilities was then £900 a week for those who still had savings.

As it happens, for most of the time I managed to keep my mother at home with me and we did indeed finish up using her savings to pay for the care that I could not provide whilst I was at work.

However, I can quite understand why family members would prefer to claim their legal rights so that they can set aside the money and have more of a say in how it's used to pay for a parent's welfare.

For example, you'd think that care home fees would organise toe nail clipping and so on, wouldn't you? That certainly wasn't the case with the home[s] that my mum was in for respite. Haircuts, podiatry, etc all had to be paid for on top of the home fees. Then there were replacements for the clothes that kept going missing.

I totally understand why a family might do what they can to prevent losing control of all of their parents' monies.

I’ve recently had experience of my mum going into a care home, and selling her flat to do so - she unfortunately only lived for 3 months there before passing away. She had lost capacity, so it was done through POA.

We were able to pick her a lovely private care home, far nicer than the council one we visited, which was utterly depressing - smelly, with no stimulation- just people plonked in front of a tv. It was worth every penny to have a high standard of care. She thought she was in a hotel! There were daily activities, the surroundings were pleasant, fresh & clean, the staff were all wonderful.

I’m always astounded when families don’t want to pay for good care.

I wish we'd had the possibility of choosing a similar place for Mum. (I'll add that in Mum's case there was no house to sell. My parents' flat was bought for very little via compulsory purchase, leaving them with no option but renting thereafter. My dad was a coal miner; Mum had been a housekeeper, waitress and factory worker.)

Now that I'm older myself, I'm conscious that I'm just going be stuck with whatever is available when it's my time.

That would probably risk IHT liability and also no need if they are entitled to legal rights. No point in relinquishing legal rights to then have the mother gift them the money anyway

OP estate sounds a bit complex so I think engaging a solicitor to deal with it might be sensible

Could be down to tax efficiency. The estate passing between spouses is IHT exempt so if the whole estate is left to the surviving spouse it’s not maximising IHT exemption. The legal rights in this case will be 1/3 I think of the moveable estate so c£70k so under IHT threshold (assuming the rest of the estate is to the surviving spouse)

I thought it was more tax efficient to leave everything to a spouse as it’s exempt?

then the IHT exempt amount is passed on to the surviving spouse.

so if 70k is given to the children then that is now outside the IHT exemption.