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  • June 11, 2020 01:44:25 PM
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A Little About Us

Articles relating to family, personal and property law. Gibson Kerr are family lawyers in Edinburgh and Glasgow specialising in divorce, separation, child law, adoption, power of attorney, executries and wills.

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Can an executor inherit from a will?

When someone dies, there is an important distinction to be made between the roles of executor and beneficiary in relation to the deceased person’s estate. Understanding this distinction will answer the question of whether an executor can inherit from a will. What is an executor? An executor is the person or persons named in the […] The post Can an executor inherit from a will? appeared first on Gibson...

When someone dies, there is an important distinction to be made between the roles of executor and beneficiary in relation to the deceased person’s estate. Understanding this distinction will answer the question of whether an executor can inherit from a will.

What is an executor?

An executor is the person or persons named in the will as being responsible for the administration of the deceased person’s estate. The role of the executor includes the following tasks: –

  • Identifying the assets and debts of the estate;
  • preparing an application to court for a grant of Confirmation (if Confirmation is required – this depends on the circumstances of the deceased person’s estate);
  • settling any debts or expenses due from the estate;
  • calculating and paying inheritance tax and other taxes, if due;
  • ingathering the financial assets of the estate (which may include selling the deceased person’s property);
  • distributing the estate to the beneficiaries.

What is a beneficiary?

The beneficiaries of an estate are those persons entitled to inherit the assets of the estate. Assets may include, for example, the deceased person’s house, money or personal effects. There can be multiple beneficiaries named in a will or there can be just one single beneficiary. Depending on the terms of the will made by the deceased person, the beneficiary may be entitled to a percentage share of the overall estate, a particular asset or to a cash sum. The beneficiary’s role is to be the recipient of the financial assets of the estate. A beneficiary is not actively involved in the administration of the estate unless they are also appointed as an executor.

Can an executor inherit from a will?

Yes, an executor can also be a beneficiary and therefore inherit from the will. There is nothing to prevent someone preparing a will that appoints the same executor and beneficiary. Indeed it is very common for an executor to also inherit under the will. However, in such cases, the executor-beneficiary should be mindful of the potential for conflict between these different roles.

An executor must bear in mind the various duties that are incumbent upon them in this role. One of these duties is to act in the interest of all of the beneficiaries of the estate. If the executor is one of a number of beneficiaries in the estate, when making important decisions regarding the estate, they should remember their responsibility to all of the beneficiaries and not just themselves.

The executor must also remember that debts and expenses have to be paid before beneficiaries are paid. They should not view the estate as their own personal money until they have fulfilled all of their duties as executor and are ready to distribute the estate. It can sometimes feel frustrating for executor-beneficiaries to see creditors paid from the estate first. However, they could put themselves at risk of personal liability if they don’t follow that rule.

In estates that are particularly contentious, there could be potential for a conflict of interest to arise between the roles of executor and beneficiary. In these situations, the executor may need to think about appointing an independent executor and resigning their role as executor. However, in the vast majority of cases, no such issue arises.

Contact us

If you would like any advice regarding the role of executor or how to claim your inheritance under a will, please contact Stuart Millar in our Personal Law Department on 0131 226 9163.

The post Can an executor inherit from a will? appeared first on Gibson Kerr.


Divorce: 5 things you need to know about unreasonable behaviour

In Scotland there is only one ground for divorce: that the marriage has broken down irretrievably. Providing evidence of unreasonable behaviour is one of the four ways to establish the irretrievable breakdown of a marriage. In a previous blog, we discussed the types of behaviour that may be considered unreasonable. Here we discuss some of […] The post Divorce: 5 things you need to know about unreasonable behaviour appeared first on Gibson...

In Scotland there is only one ground for divorce: that the marriage has broken down irretrievably. Providing evidence of unreasonable behaviour is one of the four ways to establish the irretrievable breakdown of a marriage.

In a previous blog, we discussed the types of behaviour that may be considered unreasonable. Here we discuss some of the other factors that you should be aware of if you are considering raising an action for divorce based on unreasonable behaviour.

1. Perspective matters

When it comes to unreasonable behaviour it is the pursuer’s perspective of the behaviour that matters. The court will consider how the pursuer feels about the behaviour in question and the perspective of the defender is actually irrelevant. The court will look to understand the personality and personal circumstances of the pursuer and in effect, put themselves in the shoes of the pursuer.

Once the pursuer’s perspective is established, the court will then, and only then, objectively decide if it is reasonable for that particular person to remain married to the defender or not. In this sense it is a subjective test and not what the ordinary man in the street might think about the behaviour.

2. Timing is relevant

It is only behaviour that has occurred during the course of the marriage that is relevant. It does not matter that your spouse behaved in a way that you consider to be unreasonable before you were married.

3. Frequency and intent do not matter

An act, the failure to act, or the behaviour needs to be identified. The type of behaviour complained of need only happen once. It is also not necessary to show an intention by the defender to hurt or upset the party seeking divorce. The defender may have been mentally ill at the time, or oblivious to how their behaviour may impact their spouse. It does not matter. The court is only interested in the perspective of the person who finds the behaviour unreasonable.

4. The behaviour must link directly to the reason for divorce

It is however necessary to directly link the unreasonable behaviour to the reason that the pursuer is seeking divorce. The unreasonable behaviour must be the primary reason that the party is seeking to leave the marriage.

5. Potentially a high stakes strategy

Divorce on the ground of unreasonable behaviour can feel like the right choice from an emotional perspective. However, the cost of running this type of action can be more than just financial. The nature of the allegation of unreasonable behaviour makes it more likely that this will involve parties giving evidence in court and it is one of the grounds that is most likely to cause acrimony and distress between the parties going forward. If there are children of the marriage, this may be a factor to consider.

Contact us

If you need advice about unreasonable behaviour or any aspect of divorce, we can help. Contact our team of divorce lawyers in Edinburgh and Glasgow to discuss your situation.

The post Divorce: 5 things you need to know about unreasonable behaviour appeared first on Gibson Kerr.


As executor, can I sell the house or buy it myself?

If you have been appointed as the executor to someone who has died owning property in Scotland, you may be wondering what you can do with the property. As executor, can you sell the house? And would you be entitled to buy it from the estate if you wanted to? What am I required to […] The post As executor, can I sell the house or buy it myself? appeared first on Gibson...

If you have been appointed as the executor to someone who has died owning property in Scotland, you may be wondering what you can do with the property. As executor, can you sell the house? And would you be entitled to buy it from the estate if you wanted to?

What am I required to do with the property as executor?

Executors should take a number of practical steps when dealing with a property as part of an estate. Firstly, you must make sure that it is properly insured. This mitigates the risk of the property being damaged or destroyed during the period of the administration of the estate. Contact the insurers as soon as possible to inform them of the death and that you are acting as executor. They will need to know if the property is unoccupied and may apply conditions to the policy as a result. These conditions may include the property being checked on a regular basis and the heating kept on at a minimum temperature during the winter months (or drained down). You should also ensure that the house is secure and maintained in a reasonable condition.

As executor, can I sell the property?

When deciding whether you can sell the deceased’s house, the first thing you need to consider is whether anyone is entitled to inherit the house.

If there is a will

Check the terms of the will to ascertain if the house has been left as a specific legacy to a beneficiary. In this situation, you will not be entitled to sell the house. Instead the house must be transferred to the beneficiary when you are in a position to do so.

If there is no specific legacy of the house, you should be able to sell the property. Unless the will specifically states they are not entitled to, executors in Scotland have the power to “realise” or sell assets in the estate.

If there is no will

In situations where there is no will, the estate will be intestate.  A spouse or civil partner who was living in the property at the date of death, may be entitled to inherit the house, up to a certain value.  In that case, you will not be able to sell the property unless the spouse or civil partner wishes it to be sold.

Before selling the property

Before the executry property can be sold, you must obtain a grant of Confirmation (the Scottish equivalent of probate) on the estate. This is a legal document issued by the Sheriff Court. It confirms who the executors of the estate are. It also gives the executors the authority to sell or transfer the assets in the estate. To obtain a grant of Confirmation, you must apply to the Sheriff Court. The application lists an inventory of the deceased’s assets, including values. When the grant of Confirmation is issued by the Sheriff Court, they can also provide certificates of Confirmation for each asset. The certificate of Confirmation will be used to show that you can sell the house as executor.

You may also wish to take advice from an estate agent as to whether any work should be carried out to the property before sale. This might include removing furniture, arranging a deep clean, tidying up the garden and giving it a lick of paint. Such work is not essential, but it may assist in getting the best price for the property. Major upgrading of the property is not generally advisable, as you may not get back the money you put in.

Once the property is ready to market and you have the grant of Confirmation, you can instruct an estate agent to market the property for sale.

Can I sell the property in a private sale?

You can sell the property “off market” and agree a private sale for it. This will save on estate agency fees and some of the other sale costs. However, as an executor you have a duty to maximise the estate for the benefit of the beneficiaries. Therefore, you should take advice as to what price to accept for a private sale. Without putting the property on to the open market, it is difficult to know what other buyers would have been willing to pay for the property. You should therefore try to negotiate the best price you can for private sale; ideally above the surveyor’s valuation.

As executor, can I buy the executry property for myself?

An executor is generally not allowed to transact with the executry estate unless the will specifically allows that. This is because your role as executor and purchaser would conflict. Therefore, if there are other beneficiaries who are entitled to receive a share of the estate, you would require their agreement to you purchasing the property from the estate. The other beneficiaries may raise a court action against you, if you proceed with a purchase without seeking their agreement.

Contact us for advice

We can advise you on your duties as executor or on issues relating to property forming part of the estate. Please contact one of our personal law solicitors and we will be happy to help.

The post As executor, can I sell the house or buy it myself? appeared first on Gibson Kerr.


How to Start Divorce Proceedings in Scotland

This time of year is often seen as an opportunity to make a fresh start. It is also a time when spouses separate or think about starting divorce proceedings. Taking such a big step can seem daunting, especially if you don’t know where to start. Starting divorce proceedings If ending your marriage is the only […] The post How to Start Divorce Proceedings in Scotland appeared first on Gibson...

This time of year is often seen as an opportunity to make a fresh start. It is also a time when spouses separate or think about starting divorce proceedings. Taking such a big step can seem daunting, especially if you don’t know where to start.

Starting divorce proceedings

If ending your marriage is the only remaining option, then you need to go through the correct legal process.  Divorce ends the legal contract of marriage. As a pre-requisite to be divorced in Scotland you need to meet the residence requirements and you must prove that your marriage has broken down irretrievably.  To prove irretrievable breakdown, you will need to establish one of the following conditions:

  1. You have lived separately for at least one year, and your spouse consents to the divorce;
  2. You have lived separately for at least two years (then you don’t need their consent);
  3. There is adultery; or
  4. There is unreasonable behaviour

You will need to make sure that you satisfy one of the above conditions before applying for a divorce.  Most divorces in Scotland are based on one of the first two provisions.

To be divorced in Scotland you must apply to the court, usually the Sheriff Court.  In Scotland, there are two procedures that can be used to apply for a divorce – the Simplified Procedure and the Ordinary Procedure.

Simplified Divorce Procedure

You can apply for a divorce using the simplified procedure based on one year’s separation with the consent of your spouse, or two years’ separation without your spouse’s consent. To apply for a simplified divorce there must be no children of the marriage under the age of 16 and no financial matters that need to be resolved. 

To start the simplified divorce process, you must complete the relevant application form. The application form can be obtained from the Scottish court website. You should seek legal advice before starting the simplified divorce procedure so that you can be sure that it is the right option for you.

Once you have established that you want to proceed by way of the simplified procedure, you can do this yourself without a solicitor.  Some clients want a solicitor to draft the paperwork and we can assist you with your simplified divorce on a fixed-fee basis.  

Ordinary Divorce Procedure

If you do not qualify for a simplified divorce, you need to seek a divorce using the ordinary court procedure. This is the process you have to follow if you are seeking a divorce for the adultery or unreasonable behaviour of your spouse.   You also have to use this if there are children under 16 or if you there are financial or property issues to resolve.

The ordinary procedure is more complicated and cannot be done by way of an application form to the court.   You will need a solicitor to prepare the necessary paperwork and to raise court proceedings on your behalf.   

Having identified one of the four potential conditions of divorce, your solicitor will draft the initial writ and submit this document to the appropriate Sheriff Court. This is a formal document that sets out the basis for the divorce. It is the first document submitted to the court and it starts the ordinary divorce process. Your marriage and any children’s birth certificates must normally be submitted with the initial writ.

Whichever procedure you use, divorce proceedings must be served on your spouse.  Your spouse must be informed about the proceedings. They must also be given the opportunity to defend the action.   

The divorce process will be more straightforward and cheaper if you and your spouse can reach agreement on financial matters and/or child arrangements. If you have both agreed on all issues arising from your separation before applying for a divorce, the divorce action can be undefended.

If you and your spouse are unable to come to an agreement over financial issues and/or child arrangements, your solicitor can include a request in the initial writ for the court to consider these matters in advance of or at the same time as the divorce.

Contact us

If you need advice or support starting divorce proceedings or with any other aspect of divorce, our team of divorce lawyers in Edinburgh and Glasgow can help. Contact us to discuss your situation.

The post How to Start Divorce Proceedings in Scotland appeared first on Gibson Kerr.


How to Sign a Will in Scotland

It is important to make sure your will is properly signed. With differences in the requirements in Scotland and England, not to mention the restrictions imposed by the coronavirus pandemic, it can be difficult to get it right. So, how should you sign a will in Scotland? The legal requirements In Scotland, a will needs […] The post How to Sign a Will in Scotland appeared first on Gibson...

It is important to make sure your will is properly signed. With differences in the requirements in Scotland and England, not to mention the restrictions imposed by the coronavirus pandemic, it can be difficult to get it right. So, how should you sign a will in Scotland?

The legal requirements

In Scotland, a will needs to be signed by the granter at the bottom of every page. The granter’s signature should also be witnessed by one independent adult witness. You should not have someone named in your will acting as a witness.

Ideally the witness will watch the person sign and then sign themselves. In addition the witness should provide their full name and address, along with the place (town/city) and the date of signing. Although the granter signs at the bottom of every page, the witness should only sign the final page of the will.

The court may accept a will that has only been signed by the granter on the last page or a will that hasn’t been witnessed properly.  However, this would require evidence regarding the granter’s signature being submitted to the court, and it will add time and delay to the process of dealing with the estate. It is therefore important to ensure that the will is signed following the correct procedure.  

Most people will appoint a solicitor to draft their will, however, this is not absolutely necessary. If you have drafted your own will, you should still follow the above instructions to ensure that it is accepted by the court. If the place or date of signing is missing, enquiries can be made to find that information retrospectively in order to satisfy the court, but it makes everything more straightforward if you can follow the guidance.

The position in England is different

One important thing to note is that the law in England and Scotland differs in this area.

A will requires two witnesses in England but there is no need to provide the place the document was signed. As explained above, in Scotland only one witness is required but the place of signing should be included.

Signing a will during the pandemic

The Law Society of Scotland temporarily amended their guidance on witnessing to allow solicitors to act as witness via video call, providing that the solicitor is not an executor. We can send the documents out to you in the post once we have arranged a video meeting. During the video call, you would first show your solicitor that the document is unsigned, and then sign it while still on the video call. You then return the signed documents to us. On receipt of the documents your solicitor will sign as the witness and add the witness details. This means that you will not need to ask an independent witness to visit you to watch you sign the will, which would potentially put you and your witness at risk during the pandemic.

If you do not have access to video call facilities, we will agree with you the best arrangements for signing your will.

Contact us to discuss your will

If you are interested in making a will, or changing an existing will, we can help. Please contact one of our personal law solicitors and we will be happy to discuss it with you.

The post How to Sign a Will in Scotland appeared first on Gibson Kerr.


Season’s Greetings

From everyone at Gibson Kerr, we wish you a Merry Christmas and a happy and healthy New Year placeholder Office opening over the Festive Period Our offices will be closed from lunchtime on Thursday 24th December, opening again on Tuesday 29 December. We will close for Hogmanay from lunchtime on Thursday 31st December, re-opening on […] The post Season’s Greetings appeared first on Gibson...

From everyone at Gibson Kerr, we wish you a Merry Christmas and a happy and healthy New Year

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Office opening over the Festive Period

Our offices will be closed from lunchtime on Thursday 24th December, opening again on Tuesday 29 December. We will close for Hogmanay from lunchtime on Thursday 31st December, re-opening on Tuesday 5th January 2021.

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The post Season’s Greetings appeared first on Gibson Kerr.


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