Can I Sell Deceased Mothers House

tortmad

I am looking for a bit of advice. I live in Scotland and my mother recently passed away. She owned her house but did not leave a will so the normal course of events will be that the house is sold and split with my siblings.

The questions I want to ask are can we change the name on the deeds and then the person named sells the house and splits the proceeds? Can we do this without a lawyer?

We have never gone through anything like this before and we just want to do things the simplest way.

Thank you.

Ian_W

Sorry to hear about your loss, I don't know anything about the laws in Scotland on what in E&W are called probate but at least this reply will bump it back to page1.

The purpose of probate is to ensure the integrety of the deceased wishes for their estate or if no will is made that the estate is dealt with under the laws of intestacy. Whilst the process may be different in Scotland I'm fairly sure the aim would be the same. In E&W this entails getting a probate court to agree to appoint an administrator (usually a nearest and dearest) to realise the proceeds of the estate, pay off any debts and distribute the residue to those entitled to receive it. So in E&W you don't need to employ a lawyer but you do need to go through the courts, so you wouldn't be able (and wouldn't need) to change the deeds as you're suggesting. The administrator (or executors with a will) have authority of the court to sell on behalf of the estate.

In Scotland aren't house sales usually dealt with through a solicitor anyway? If you're going to have to employ one to sell, wouldn't it be sensible to use one to sort out her estate?

macman

No you can't, because the property is not yours to sell. Where the deceased dies intestate, the relatives must apply to the probate registry for a grant of letters of administration, and then the estate is valued and the assets realised-you and your siblings will then receive whatever is due to you. An inheritance tax declaration will also need to be made. Unfortunately the process will probably take longer than if you mother had made a simple will.
This relates to English law, I am not sure if the Scottish system is any different.

tizerbelle

OP, this is the link you need to the scottish governments own publication about what to do after a death: http://www.scotland.gov.uk/Publications/2009/06/24094516/0

If there is no will then you need to get a solicitor or the sheriff clerk to arrange for the court to appoint an executor called an "executor dative".

The guide covers what this executor needs to do

HTH

googler

macman wrote: »

... relatives must apply to the probate registry for a grant of letters of administration .....

This relates to English law, I am not sure if the Scottish system is any different.

It is (in 10 words or more).

googler

tizerbelle wrote: »

If there is no will then you need to get a solicitor or the sheriff clerk to arrange for the court to appoint an executor called an "executor dative".

The guide covers what this executor needs to do

I went through exactly the same at the end of last year. Having tried to persuade my mum to draw up a will for years, it kept getting pushed to the back burner, until eventually too late. Even a simple will would have simplified things.

I believe you can transfer the ownership of the house into the beneficiaries' names, with a solicitor's help, but you may need to go through some hoops before getting to this stage. Much of what needs to be done in winding up an estate does not require the services of a solicitor, but for reasons I'll explain below, and because they want to retain business and keep an air of mystique around the process, many bereaved folks merely hand the whole thing over to them, when they could quite easily handle a lot of it themselves.

Once you, or you and your siblings, are appointed Executor(s) Dative (this requires a Petition to the Court in your county, which has to be in specific legal form - I recommend a solcitor for this), you need to obtain Confirmation of the estate. This is essentially a list of all your mother's assets and debts. If you're not familiar with all of these yet, you'll have to get up to speed. Bank accounts, life assurance policies, shares, property, personal possessions, etc. This involves writing/phoning/e-mailing around all the companies etc with proof of your executry and getting statements from them as to your mother's state at date of death. You do not need a solicitor to do this for you. You have to account for everything.

You would be wise to get a RICS surveyor to value the house (not an Estate Agent) for the purposes of declaring the value on the confirmation and inheritance tax declarations.

However, even before getting confirmation of the estate, you will need a Bond of Caution. This has to be provided by one of only two insurance companies - Royal Sun Alliance or Zurich. The complication with this is that RSA will not issue a Bond of Caution to an individual, only to a Solicitor who is handling the winding up of the estate for you. Zurich are in two minds - they say they don't 'normally' issue them to individuals, but I think if you sound confident, well-prepared and honest when you speak to them on the phone, you might succeed in getting one. I did.

You will need ready cash, though - there's a charge for the bond, and for an estate valued at approx £280,000 I was charged approx £2,500

Armed with the Bond, I was able to get the Confirmation, and from there the only help I needed from the solicitor was in transferring the ownership of the house. Everything else I handled myself, saving myself thousands in solicitor bills and hence maximising my inheritance. As i say, most folks merely hand over to a solicitor due to lack of knowledge, but if you do, this will take a sizeable chunk out of the value of the estate.

Don't forget the Inheritance Tax return to HMRC.

Hope this helps. Ask more if you want.

One last thing - you may want to do things the 'simplest' way, but mark my words - you can't cut corners. You MUST, if acting as an executor, distribute the estate according to the letter of the law. You cannot distribute any part of the estate to any beneficiary without Confirmation of the estate.