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Property after death: advice for those dealing with the estate of a loved one

Published: 20 September 2021
Time to read: 4 mins

We all know that it is sensible to have a Will drawn up to document how you want your assets to be divided after your death, and any other specific instructions you have such as funeral arrangements.  After the death of a loved one an up-to-date Will provides some comfort to the family in what is a difficult time.  However once the funeral is over and the dust has settled, families are often left asking what happens next?

There is usually a family home to be dealt with, and options to be considered in this regard.  If the family home is to be sold, decisions may need to be taken about removing personal items and dressing it for sale to ensure that it looks as attractive as possible.  Consideration will need to be given to viewings by prospective purchasers, and often it is best to have a third-party viewing agent to assist with showing people around, especially if you don’t live nearby.  There are organisations with specific expertise in these fields and it is important to ensure you get the best advice.

Timing is also key when thinking about selling a property, and now is certainly a good time to be marketing a family home with demand seriously outweighing supply and many families having used the last 18 months to save up and makes plans for the future.  Equally there are times to avoid, and it would not normally be sensible to put a property on the market just before Christmas when everything shuts down and photos would invariably be dark and dreary meaning it may be worth waiting until the Spring.  Furthermore, it is key to ensure that Confirmation has been obtained from the relevant Sheriff Court, because without the Certificate of Confirmation the property simply cannot be sold.    Currently some local Sheriff Courts are taking approximately 10 weeks to process applications for Confirmation and so careful thought needs to be given on the timing of the whole process.  Getting appropriate advice on this will not only avoid delays and uncertainty, but ultimately reduce cost.

Of course sometimes properties are not sold but are transferred to specific family members, should this be specifically covered off in the Will of the deceased.

Whether the property is being sold or retained within the family, consideration needs to be given to the most tax efficient way of dealing with the executry.

Inheritance tax is the most well-known tax that needs to be considered.  Broadly speaking, any inheritance tax liability is based on the value of the property and who is to inherit the property.  The Will of the deceased should have been drafted tax efficiently to access reliefs available such as spousal exemption and the residential nil rate bands.  However, there may be scope to put a deed of variation in place within 2 years of death should there be a more efficient way of dealing with a property, particularly where the tax legislation has changed since the Will was drafted.

Where the property is to be sold, Capital Gains Tax (CGT) must also be considered.  Any increase in value of the property from the date of death to the date of sale is potentially charged to CGT at 28% within the estate.  In some cases, it may be more tax efficient to appropriate part or all of the property to a beneficiary prior to sale to access additional annual allowances and a lower rate of CGT.  Look out for any borrowings secured on the property and take advice prior to making any transfers.

Appointing a firm of solicitors who can deal with the process from start to finish, including the key issue of marketing the property, can be invaluable.  Losing a family member is difficult enough, and so it is important to have trusted advisers who can hold your hand and ensure a smooth transition throughout the whole executry process.

This article featured in The Scotsman on 20 September.

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