27 Apr 2020

Relatives left 'locked out' of estates by Coronavirus

Relatives left 'locked out' of estates by Coronavirus

Bereaved families face being locked out of their loved one’s estate for months on end as Coronavirus clogs up Scotland’s legal system.

With only essential matters being heard in Scottish courts at present, confirmation applications to gather and distribute assets of those who have passed on have ground to a halt.

The Scottish Court & Tribunal Service is expected to announce interim measures this week - but there are fears that the delays, coupled with rising deaths due to Covid-19, could swamp Sheriff Courts when they re-open fully.

Without confirmation being granted by a Sheriff, estates cannot be wound up and assets cannot be distributed to beneficiaries.

Backlog

James MacKinnon, a Partner at Aberdein Considine, believes the backlog of applications will be “substantial”.

“The passing of a loved one is upsetting for those left behind - and the thought of having to deal with the often complex process of winding up the estate can be daunting,” he said.

“This is being made ever-more complex by the current restrictions in place to shield people from Covid-19.

“We have been inundated with work since the outbreak, particularly around matters involving wills, powers of attorney, and estate administration. While innovative ways of working have allowed much of this to proceed as normal, the closure of courts to all but essential business has halted the winding up of estates.

“The backlog is already substantial and, sadly, will continue to grow as the tragic Covid-19 death toll increases.

“The delays could be even longer for people who died without leaving a will. In these cases, a beneficiary of the estate will need to apply to court to be appointed as Executor before the application for confirmation can even begin.”

Families urged to proceed

Confirmation is known as Probate in England and courts south of the border continue to process applications

Only once Confirmation – representing the Executor’s authority to gather up the estate for distribution - is granted, can the process move on to the final stages.

Despite the delays, Aberdein Considine is urging families to proceed with estate administration to ensure that their case is among the first to be heard when Scotland’s sheriffs return to the bench in meaningful numbers.

Mr MacKinnon added: “A large part of the legal work around executory administration can still go-ahead, despite the current restrictions.

“This include things like gathering a comprehensive inventory of all assets, including property, cash accounts, shareholdings, land, personal items of value, pensions, insurance policies, as well as details of any debts.

“And we understand that confirmation cases will be heard in the order that they are filed, once courts re-open to non-essential business. This means that the earlier a confirmation application is submitted, the more likely it is to be granted in a reasonable timeframe.”

Update expected

A spokeswoman for the Scottish Court & Tribunal Service said new guidance will be issued in the coming days to address some of the issues.

She said: "We worked with the Law Society of Scotland to identify and prioritise extending the urgent and essential business being undertaken by courts and have responded positively to concerns regarding commissary work and the effect of delay on bereaved families.

"New guidance will be issued this week and we are relying on practitioners to assist and support the courts at this time.”

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