What you need to do after someone dies in Scotland depends on a wide range of circumstances.
When a family member or close friend dies, there is always emotional trauma, whether the death was expected or not. However, when the person’s demise occurs, practical steps need to be taken. The extent of these steps will largely depend on the way in which the individual has passed away.
Perhaps the most straightforward circumstances are when a person dies after an illness either in hospital, a hospice or at home. The fact that the death has largely been expected means there is immediate professional intervention. If at home, the deceased’s GP should be asked to attend to certify the death. If in a hospital or hospice, the staff there will generally intervene and deal with the immediate certification needs.
If the death was unexpected or unusual, the police and medical professionals must be informed. They will then advise you of their involvement and what they intend to do next.
There are then three medical questions to be considered. The first is whether any of the deceased’s organs are deemed suitable for transplant and, if they are, whether the individual has opted out of Scotland’s automatic opt-in organ donation legislation. The second question is whether a post-mortem examination is required to determine the cause of death. Finally, the third question is whether the deceased had entered into an agreement with a University Medical School to donate their body to science.
Having navigated through these immediate necessary steps, the next range of actions deal with the practicalities of the funeral arrangements. First of all, you need to spread the word to friends and relations. If the individual was religious, it is important that you contact the appropriate celebrant to officiate over any funeral service. You also need to contact a funeral director who will arrange the practical steps for the funeral. It is also important to recognise that different faiths have their own practices and timings for those funeral arrangements.
At the same time as dealing with these steps, you need to register the death with the local registry office. The death must be registered within eight days. The burial or cremation cannot take place without the death being registered.
Finally, check if the deceased had made a Will. If they had, find out if there was any expression of wishes in relation to the funeral. Importantly, the Will should appoint the executor or executors to deal with the administration of their estate.
If there is no Will or if the deceased’s Will cannot be found, and if you are involved in the funeral arrangements, it is important to consider if you have the authority to commit the estate to the cost of any funeral arrangements you are making. If there is no written expression of funeral wishes then a 2016 Act of the Scottish Parliament authorises the “nearest relative” (as defined in the Act) to make the funeral arrangements.
Whilst awaiting the funeral arrangements, if the deceased had made a Will, you should contact the solicitor who holds the deceased’s Will to let them know the deceased has passed away. If you have been appointed an executor in the Will, you need to consider whether you wish to wind up the estate yourself or if you wish to instruct a solicitor to assist. If you are a joint executor with others, you should discuss options with them, including which solicitor to instruct.
If there is no Will, a decision must be made about who will be appointed executor. The familial relationship with the deceased usually governs this. In simple terms, if the deceased was married or in a civil partnership, the surviving spouse or partner is the person usually entitled to be appointed executor, provided, of course, they have capacity. Failing that, the next consideration is children of the deceased and remoter descendants. If there is no one in those categories too we next need to consider parents or siblings and then wider family members who are capable of being appointed executor.
Once an executor has been appointed, they will then deal with the winding up and ingathering of the estate. If you have not been appointed executor in the Will or if you are not the likely family member to be appointed executor, do not make decisions about the funeral or the estate that you might later regret.
Murray Beith Murray Partner, Andrew Paterson, heads our Executry group and has assisted many families with the legal issues arising following the death of a relative. If this blog has raised any questions or you have a matter to discuss please get in touch using the enquiry form or call on 0131 225 1200.
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