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Frequently Asked Questions

This is a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity. Anyone with an interest can make an application for a guardianship order. When we refer to an adult, this is someone who is aged over 16 who is not able to look after their own affairs. ("OPG").

What is Conveyancing?

Conveyancing is the legal process that takes place after you have agreed details when buying or selling property. It creates a contract which leads to ownership of a property being transferred from one person to another. This is done by way of missives, which is the process of the exchange of letters between the buyer and seller’s solicitors. Missives could be concluded in two letters if the seller agrees to all the terms of the purchaser’s written offer. In practice this is very unusual and the buyer’s offer is more often subject to survey or other restrictions which prevents a straightforward acceptance by the seller of the original offer.

Conveyancing also involves the carrying out of additional searches that concern the property and the parties involved. Searches and checks are carried out to find out whether there are any outstanding repairs, the fabric of the building complies with local regulations and if any alterations have been accompanied by the necessary paperwork. These steps ensure that the buyer is not landed with significant costs after they have bought the property.

What is the Conveyancing process?

Once the offer is accepted, the purchaser and seller’s solicitors will negotiate the terms of the contract by way of exchange of ‘missives’. This will include issues such as the Date of Entry and any additional items that are to be left in the property. The seller’s solicitor must send the purchaser’s solicitor the title deeds to the property as well as a search of the Land Register to show that there is nothing legally to prevent the seller from selling the property.

The conclusion of the contract is called ‘conclusion of missives’.

The purchaser’s solicitor will ask their client to send the purchase funds to the solicitor’s client bank account. The purchaser’s solicitor will also request any mortgage funds from the mortgage lender, where appropriate. On the Date of Entry, the purchaser’s solicitor pays the purchase price to the seller’s solicitor. The seller in turn provides the purchaser’s solicitor with essential paperwork that facilitates the transfer of ownership of the property to the buyer. When the purchaser’s solicitor confirms they are happy with the paperwork provided and the seller’s solicitor confirms they are happy that they have received the purchase price on behalf of the purchaser, the transaction is treated as ‘settled’. Keys will then be provided for collection either at the solicitors office or from the seller directly.

How long does the Conveyancing process take?

Unfortunately there is no set timescale for the conclusion of missives. This can be dependent on the simplicity of the situation. Things that could hold up the conclusion of missives are (but not limited to):
- the number of issues that the purchaser and seller are in disagreement about;
- the purchaser’s lender delaying sending through the mortgage paperwork
- an example is a seller thinking that they own more than they do, i.e, believing that the extent of the garden or land is more than it actually is.
- the purchaser’s mortgage position is often one of the most significant factor, that affects the duration of the conveyancing process.

Additional paperwork

Where alterations may have been carried out on the property additional paperwork would be required in order for the transaction to settle.

Statutory Notices

Statutory Notices are notices of common repairs requiring to be done.

Anti-Money Laundering Checks

Additional anti-money laundering checks may need to be carried out during the conveyancing process. This can occur where the money for the sale is from a third party, such as a gift from a relative, where the conveyancing process reveals that someone else is named on the title deeds, or where other circumstances dictate it.

Once settlement has taken place, the purchaser’s solicitor is required to submit an application to the Registers of Scotland on behalf of their client for registration of title and to pay Land & Buildings Transaction Tax (if payable) ("LBTT") . If this is a second dwelling house for the purchaser there could be Additional Dwelling Supplement ("ADS"). Once the registration process has been completed an up to date Land Certificate Title will be issued in the purchasers name.

The Scottish Government has produced a booklet called “What to do after a death in Scotland ... practical advice for times of bereavement,” which provides a helpful guide to the practicalities. It is definitely worth reading.

Additional practical guidance is also available from organisations such as the General Register Office for Scotland and charities like Age UK Scotland

What is Confirmation?

Confirmation is a legal document that is granted by the court.
It acts as proof that you - the executor - are authorised to deal with the property owned by the deceased person. Once you have the document, you can send it to all the banks, building societies and other organisation with which the deceased had an account or property. In return, they will transfer the money or property to you, as Executor, to distribute according to the Will.
To obtain Confirmation, an executor must provide a inventory of all the deceased's property at the time of death. The inventory - might include money, houses, land and shares. The inventory must include:
all items of property, even those that have already been paid over to the deceased's representative(s); and any other property that might be located in England, Wales or Northern Ireland.
Confirmation is possible only if the inventory includes at least one item of money or other property in Scotland. Contact us for more information

Applying for Confirmation?

A major part of the application for confirmation is given over to an inventory of the estate, and needs to be quite detailed, setting out a description of each item (such as an account name and number, or house address) and a value.
Before applying for confirmation you will need to obtain up to date valuations for everything to be included in the estate. This process can take quite a bit of time while you wait for all the companies to supply the relevant information to you.
As executor of the estate the application will also set out your details, so that you can be officially authorised by the court. If there is a Will, then the process is simple – the court can check the Will, check your identity, and approve the appointment.
If there is no Will, then you can still be appointed as an executor, but different procedures apply. Speak to our Marina Kerr for further information.

Obtaining Confirmation in Scotland?

Once you have completed the application, you will need to send it to the local sheriff clerk's office together with the relevant court fee and any accompanying documents. Confirmation is normally granted within a few days.

Why do I need Confirmation?

It is usually the banks or insurance companies that request Confirmation before they will pay over the money to the beneficiaries of the deceased’s estate. The idea is that by obtaining confirmation the court is confirming that a third party, the executor, has the right to the deceased’s property and is entrusting that person to transfer those assets in accordance with the will or the law.

When do I need Confirmation?

Confirmation is nearly always needed when a person who dies leaves one or more of the following, £5,000 or more although this figure can vary significantly depending on which institution is holding the funds.

When is Confirmation not needed?

The person who died left a total estate not exceeding £5,000 (although the figure can vary significantly depending upon which institution is holding the funds. In practice in some cases, Confirmation can be dispensed with in cases where the estate is worth up to £36,000, but in other cases lower limits will apply). The deceased owned everything jointly with someone else and everything passes automatically to the surviving joint owner.

What does it cost for a valuation and how do I arrange this?

We offer a free valuation service that allows our property manager to come to your home, consult with you on your property and then give an impartial valuation based on like for like properties in and around the area. Just give us a call to arrange a convenient time.

Will you been involved in the viewings at the property?

This is entirely up to the client depending on how involved you wish to be in the sale of the property. If the property is your current home and you would like to be involved in the sale of the property then it would be more likely that you would want to do the viewings yourself but we can and do offer a viewing service to you. We always attend all viewings for properties that are selling as vacant.

Where will my property be advertised?

Your property will be advertised on the Doughtys website, Zoopla, Prime Location and the ESPC (Edinburgh Solicitors Property Centre).

How long would it take from instructing you to the marketing of my property?

Depending on where the property is and as to whether the property is empty or occupied this could take between 2-4 weeks from the time instructed to actually marketing on the websites we use.

What is a Home Report and why do I need one?

A home report is required by law to be available for all properties that are marketed for sale. This gives the potential purchaser some knowledge on the property, ie whether any alterations have been made, how old the property is etc.

If I wish to put my property on the market how do I go about this?

Just give our friendly property team a call and this will all be arranged for you. We will take you through step by step, the procedure to market your property as smoothly as possible.

What happens when an offer comes in for my property?

When a potential purchaser, that has viewed your property, is interested in buying it they would either contact the property team to put in a verbal offer for this to be submitted to the client, if the client is happy with the offer the potential purchaser would be advised to speak to a solicitor to have a formal offer sent to the seller’s solicitors. If the offer is not quite what the seller is looking for we can negotiate on your behalf to seek a better offer. Once the offer has been agreed our team of conveyancing solicitors would then become involved in the process.