Do you have to use the same solicitor for confirmation that holds the Will?   

In Scotland, the legal process of administering a deceased person’s estate is known as “confirmation,” which is similar to “probate” in other jurisdictions. A common question that arises during this process is whether you must use the same solicitor who holds the Will to carry out the confirmation process. The straightforward answer is no; there is no legal requirement to engage the solicitor who holds the Will for confirmation. However, several factors should be considered when making this decision.

Understanding the role of the executor and solicitor

Upon a person’s death, the executor named in the Will is responsible for administering the estate. This involves gathering assets, paying debts, and distributing the remaining estate to the beneficiaries. While executors can undertake this process themselves, many choose to appoint a solicitor to navigate the legal complexities involved. It’s important to note that the solicitor holding the original Will does not automatically have the authority to act as the executor or manage the estate unless they were explicitly appointed in that Will.

Accessing the original Will

The original will is a crucial document in the confirmation process. If a solicitor holds the original will, they are obligated to release it to the executor upon request, after production of a death certificate and suitable identification. This allows the executor the freedom to choose any solicitor or to proceed without legal representation, should they wish.

Factors to consider when choosing a solicitor

• Complexity of the estate: If the estate includes intricate assets, foreign properties, or potential disputes among beneficiaries, engaging a solicitor experienced in such matters is advisable. Only a solicitor qualified in Scots Law can advise executors regarding the administration of a Scottish estate.

• Existing relationship: The solicitor who drafted or holds the will may already be familiar with the deceased’s intentions and assets, potentially streamlining the process. However, this familiarity is not mandatory for effective estate administration.

• Geographical location: While the solicitor’s physical location is less critical in the digital age, some executors prefer local solicitors for face-to-face interactions. Local expertise can also be beneficial in certain cases.

• Specialisation: Engaging a solicitor who specialises in wills and estates can be advantageous. Some firms focus on executry services, offering tailored guidance through the confirmation process.

Steps to take if you choose a different solicitor

First and foremost you will need to obtain the original Will by contacting the solicitor that is holding the document. They are legally required to release it to the executor, after production of a death certificate and suitable identification. If you are having difficulty finding the will, your solicitor can ask for an email notice to be issued to the local faculty of solicitors to ascertain if a will is held by any firm or the Registers of Scotland – if a Will has been registered in the Books of Council and Session.

While there is no legal obligation to use the same solicitor who holds the will for the confirmation process in Scotland, it’s essential to make an informed choice. Consider the estate’s complexity, potential costs, and the solicitor’s expertise in Scots Law. By evaluating these factors, executors can ensure the deceased’s wishes are honoured properly and in accordance with legal requirements.