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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9977
Experience:  30 years as a practising solicitor.
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My mother and father were living in Scotland until my father

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My mother and father were living in Scotland until my father passed away six months ago, my mother now resides in England to be closer to me.
My brother was appointed executor of my fathers will, (my mother did not want to deal with the finances). My brothers duties were completed 3 months ago and I have now gained power of attorney for all my mother’s affairs, unfortunately all communication between my brother and I have failed and is very unlikely to improve.
My question is – am I able to administer the distribution of the one third share of my late father’s estate which I and my brother are entitled to under Scottish law?. We were advised, this share was available to us for 20 years from date of death.
Thank you for your question.

You are entitled to one sixth each of your father's moveable property. That claim should have been made during the administration of the estate. Whilst you have 20 years to claim, if the estate has been distributed, it is not generally practical to do so after the estate has been completed.

The fact that you have power of attorney for your mother means that you can intromit with her affairs and her finances. The responsibility for your father's estate remains with his executor. If he has not dealt with the distribution of legal rights that are being claimed (they don't have to be) then he has not completed the administration of the estate.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.

Thanks for your rely, as mentioned the executor no longer has access to my mothers finances, so am I unable to proceed?
Many thanks

You can make a claim to the executor. If he has distributed the estate without dealing with the issue of legal rights then he could be found personally responsible for the amount due to you. As part of the administration of the estate he ought to have ascertained whether there was to be a claim for legal rights. If not a formal renunciation should have been sought. If so then he should have made reservation for that in the executry account.

It is rather strange that this issue is only just being raised now.
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