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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11153
Experience:  30 years as a practising solicitor.
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My mother died on 01 02 2016, in Edinburgh. We were estranged

Customer Question

My mother died on 01 02 2016, in Edinburgh. We were estranged for 5 years but my cousin, who had joint power of attorney with another cousin, said that she had wanted to make contact. They advised her that she had a phone and phone book but my mother was profoundly deaf and could not have made an international call without help.
Since her death my cousin has refused to put me in touch with her lawyer who I think is a joint executor with my two cousins. I know my mother was diagnosed with dementia sometime before Sept 2015. I live in Spain and understand that I have legal rights under Scots law but do not know if the lawyer must contact me before applying for Probate(?) or if I need to something to ensure my rights.
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
You need to advise the executors that you wish to know what provision has been made for you in your mother's will. If there is no provision then you can claim legal rights which would be for one half of any moveable estate, such as money and investments, assuming you have no brothers and sisters and there is no surviving spouse. You have 20 years from the date of death to make a claim but the sooner you do so the better. Confirmation is the process we have in Scotland rather than probate and the solicitor will apply for this once he knows the extent of the estate. The local sheriff court in the district in which your mother died will administer this and you can get a copy of the will and estate inventory from the court once it is lodged, usually between three and six months from the date of death. So there is no point in them refusing to show you the will and extent of the estate themselves. Happy to discuss further. In the meantime I hope that helps and would ask you to leave a positive feedback so that I am credited for my time.
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Customer: replied 1 year ago.
My mother was likely to have left less than 30k in her will and due to my cousins influence I do not expect to have been mentioned in it. I only have an Email address and mobile phone number for one cousin. Is there any low key way of progressing this? Can I contact the court to advise them that I have concerns, especially as they have withheld the lawyer´s information, and prevent the paper work progressing without my involvement? Thank you again.
Expert:  JGM replied 1 year ago.
There is a risk that if the estate is small no confirmation will be applied for and that the executors will seek to get the funds simply by way of withdrawal. You may want to consider instructing your own lawyer to contact the cousin that you have an email address for and intimate that you are claiming legal rights. If there is no reply you may have to trace an address via an investigator and raise a court action for count, reckoning and payment to protect your position.
Customer: replied 1 year ago.
Could a lawyer, as co-executor with my cousins, legally or reasonably progress the withdrawal of funds as you mentioned, if he knew that there was an only child with legal rights?
Could such a withdrawal have already taken place leaving me to try to recover any funds retrospectively?
Is there any way of finding this out? Or is there no requirement to lodge the will or inform the court of such a withdrawal?
Expert:  JGM replied 1 year ago.
No, a solicitor has to investigate the legal rights position and cannot ignore this, even if another executor instructs him to do so. There is recent authority on this from the Scottish Solicitors Discipline Tribunal. You must insist that your cousin discloses the name of the solicitor or else you have to take the cousin to court.
Customer: replied 1 year ago.
Thank you for all your help. It has been easy to understand. I have now e-mailed my cousin requesting the lawyer´s information. I hope I can call on you again of required. Regards Phyl
Expert:  JGM replied 1 year ago.
Of course you can. Don't forget to rate me so that the site credits me for my time.