Do I need a solicitor when someone dies?

The loss of a loved one can be overwhelming for those left behind, not least of all navigating any legal rights and responsibilities you may have as the next of kin. When someone dies in Scotland there are certain legal steps that need to be taken and appointing a solicitor can provide you with the support and advice needed to help guide you through the process.

At McSherry Halliday, we have written a quick guide to some of the legalities involved when a loved one passes away, and some of the circumstances in which you may need expert legal help.

Finding out if there is a will

This is the first important step to take when someone dies. Often people will have their own solicitors who keep records and the principal will, so contacting them in the first instance should give you the information you need to start the process. Wills are very private documents, so in addition to storing a will with a solicitor, sometimes people will store them at home, or with a banking institution. If you’re searching for a will in Scotland, the Register of Scotland can help you for a small fee. Otherwise your own solicitor will be able to help.

What if there is not a will?

When a person dies without leaving a will – known as dying ‘intestate’ – the court can arrange for someone to be appointed as executor. This is usually a surviving spouse or civil partner who would need to petition the court to take on the role, via their solicitor. In some cases a child or extended family member will be appointed as executor, if there’s no other closer relative. Dying without leaving a will creates more work and responsibilities for those left behind and could mean that your wishes are not carried out as your estate will be divided in line with the laws of succession in Scotland. Without a will in place, you have no say in how your estate is divided up. Writing a will is often straightforward, but can be more complex if it involves inheritance tax or appointing guardians for children, so consider taking legal advice from a qualified solicitor.

The role of an executor

A will often names the person or organisation that the deceased person has chosen to administer their affairs after they have died. This is called an ‘executor’ and they are legally responsible for dealing with and winding up the person’s estate – that is their money, property and other possessions, as well as arranging the funeral, registering the death and paying any debts or taxes from the estate funds. Being the executor of someone’s will in Scotland is an important responsibility and consulting a solicitor can help ensure you fulfil all your legal obligations.

Not everyone wants the responsibility of acting as an executor, and you can choose not to take on the role. If you are the sole named executor, you will need to appoint someone else, such as another family member or legal firm, and then you can resign.

Contesting a will in Scotland

There are many reasons why you may consider contesting or challenging a will.  It may be that your parent has excluded you from their will and you wish to find out your automatic entitlement to their estate through legal rights.

Expert solicitors can help you make a claim for legal rights, as well as helping executors who have received a claim.

How we can help

Our specialist team of Wills and Power of Attorney solicitors at McSherry Halliday can provide you with straightforward, practical and trusted advice for when a loved one dies, as well as helping you prepare for the future.

If you would like to have a chat over the phone, arrange a video call or meet in person, please contact us and we can help guide you through the process.