Your guide to bonds of caution in connection with Executry estates in Scotland

Transcription

1 Your guide to bonds of caution in connection with Executry estates in Scotland Statement of demands and needs A bond of caution provided by Zurich Insurance Public Limited Company ( Zurich ) meets the demands and needs of those persons wishing to obtain Confirmation in respect of an intestate estate or, in some cases, a testate estate in Scotland. Instruments of this nature are a compulsory requirement of Scots Law in certain circumstances and not a matter of choice upon which we can make, or do make, any recommendations. Disclosure statement The company which provides bonds of caution is Zurich Insurance plc, Zurich House, Ballsbridge Park, Dublin 4 Ireland, a Company registered in Ireland (registration number 13460). UK branch registered in England and Wales registration number BR7985. Zurich Global Corporate UK is a trading name of Zurich Insurance plc. Zurich Insurance plc is authorised by the Central Bank of Ireland and subject to limited regulation by the Financial Conduct Authority. Details about the extent of our regulation by the Financial Conduct Authority are available from us on request Our permitted business is Suretyship. We provide surety bonds and guarantees which include bonds of caution required in certain circumstances by Scots Law. The above details can be checked on the FCA s Financial Services Register via their website or by contacting them on Our FCA Firm Reference Number is You will not receive advice or recommendations from Zurich. Zurich will notify of the premium payable before the issue of a bond. The business of Zurich is covered by the Financial Services Compensation Scheme. A claimant under the bond may be entitled to compensation if we cannot meet our obligations. This depends on the type of business and the circumstances of the claim. Further information can be found at: Financial Services Compensation Scheme (FSCS) 7th Floor Lloyds Chambers 1 Portsoken Street London E1 8BN Tel: Website address: Page 1 of 7

2 What is a bond of caution? When someone dies it can be a very difficult time for family members. At a time of personal grief, aside from making funeral arrangements and obtaining a death certificate, the estate of the deceased person needs to be dealt with. This brief guide is intended to provide some initial general background information in respect of bonds of caution which may be of assistance to you in obtaining your own advice. Applying for Confirmation Thorough investigations should be made with regard to the existence of a will. Where no valid will exists it may be necessary to apply to the Sheriff Court for the appointment of an Executor. This is usually done by the closest relative to the deceased person. The Executor is required to administer and to distribute the estate to the appropriate creditors and beneficiaries according to the Laws of Succession in Scotland (Succession (Scotland) Act 1964). Where the estate is a small estate (currently below 36,000), an inventory should be prepared. Any Sheriff Clerk s office can be contacted in order to make an appointment to obtain advice on completing the inventory of a small estate. The advice provided is free. Where an estate exceeds the limits of a small estate, the Sheriff Clerk s office cannot provide advice, the simplified procedure described in this leaflet cannot be used, and a solicitor should normally be consulted. The appointment of an Executor by the Sheriff Court, a process known as Confirmation, is only possible where the inventory includes at least one asset in Scotland. Once the inventory is complete, the proposed Executor must sign a declaration that the information provided is a full and complete list of the deceased s whole gross estate as at the date of death. Where no valid will exists, and the Executor is not the spouse who is entitled to the whole estate in terms of their prior rights, a bond of caution will usually be required by the Sheriff Court before Confirmation can be issued. The bond of caution is required by Scots Law and both the bond of caution and our contract with you will be governed by Scots Law and the courts of Scotland will have jurisdiction over any disputes. Where a spouse applies for Confirmation, and the estate exceeds the prior rights of the spouse, a bond of caution will also usually be required. A bond of caution provided by an insurance company is a guarantee (for the benefit of creditors and beneficiaries) that the estate of the deceased will be administered correctly. The bond of caution is not an insurance policy which provides cover or protection to the Executor. Claims Where a beneficiary or creditor wishes to make a claim under a bond of caution issued by Zurich they must write to Zurich with details of their claim. Zurich will respond to all claims promptly and keep the Executor and claimant informed throughout the claims process. Zurich will handle all claims fairly and in strict accordance with Scots Law. Where there are genuine disputes between Executors and claimants, Zurich may require the decision or order of the court in order to deal with a claim. Executor s Responsibilities The Executor at all times retains the primary legal obligation to administer the estate according to law and to satisfy the claims of beneficiaries of the estate. Where a valid claim is made under the Bond, Zurich will pay the claim and the Executor will be bound to make reimbursement of this amount to Zurich plus any costs incurred by Zurich in relation to the claim. Important Note All persons proposing to apply for appointment as Executor or who may be affected by an Executor appointment should obtain their own legal advice from a solicitor in Scotland. Applying for a Bond of Caution To obtain a bond of caution from Zurich an application form must be completed and the declaration on the final page signed by the Executor(s). Before agreement to issue the bond is provided, the Executor(s) will need to demonstrate that thorough investigations have been made in relation to the existence of debts/liabilities. An Executor risks becoming personally liable for any debts of the estate if they have distributed the estate to the prejudice of a creditor. The Department for Work and Pensions ( DWP ), Recovery from Estates Department, should be contacted to confirm either that they have no claim against the estate or the amount of any such claim. The DWP will provide you with a letter advising you of the position. In cases where the DWP has a claim against the estate, Zurich may be unable to issue the bond, further information may be required, or Zurich may only be able to assist if an application for the bond of caution is submitted via a firm of solicitors. By signing the Zurich application form, you consent to the sharing of information between Zurich and the DWP which may reduce the time taken to process your application. Page 2 of 7

3 You will be asked to list the names and current permanent addresses of all beneficiaries of the estate. You will also be asked how you intend to distribute the estate (i.e. to which individuals and in what proportions). The estate must be distributed in accordance with the Laws of Succession in Scotland, unless otherwise agreed between all beneficiaries and, if this is the case, we will require further documentation and may require you to apply for the bond via a firm of solicitors. The application form should be completed in full. Partially completed forms or those submitted without the necessary supporting documentation will result in a delay in Zurich agreeing to issue a bond of caution. If you experience any difficulties in completing the form, Zurich can provide assistance by telephone. Once complete, the application form should be submitted to Zurich together with: a copy of the Confirmation application form (C1 form) completed in draft a copy of the full death certificate (abbreviated copies will not be accepted) a copy of a letter from The Recovery from Estates Department of the DWP a schedule of debts / liabilities of the estate (if applicable) payment (cheque or postal order made payable to Zurich Insurance plc). The premiums payable for applications submitted directly by an Executor are set out below completed and signed cut out slip from page six of this leaflet. Other documents or information may also be requested in support of the application after the initial review has taken place by Zurich. In certain circumstances, the bond may only be issued if a solicitor is appointed to assist the Executor, and if the solicitor deals with the administration of the estate. This applies to estates below, as well as above, 36,000. If an application submitted directly by an Executor for a bond of caution for an estate over 36,000 is accepted, the Executor will be provided with indicative terms which clearly state the bond amount and the premium payable Premiums for applications submitted directly by an Executor Estates of up to 20, Estates of between 20,000 and 30, Estates of between 30,000 and 36, For estates greater than 36,000 it is normal practice for Zurich only to assist by issuing a bond of caution if a solicitor is appointed to assist the Executor, an application for the bond is submitted by the firm of solicitors, and the solicitors administer the estate. If, however, an Executor wishes to submit an application for an estate over 36,000 Zurich will review the application form and supporting documentation and then confirm whether we are able to proceed on a direct basis and, if so, the premium that is payable. The premium charged by Zurich is exclusive of all court and/or legal costs which may be incurred by the applicant during the process of obtaining a bond of caution. It is the Executor s/proposed Executor s responsibility to settle any such court and/or legal costs. There is no Insurance Premium Tax (IPT) or Value Added Tax (VAT) payable in relation to a bond of caution. The premium charged by Zurich is a one-off premium for us to issue a bond of caution and is non-refundable, unless the Executor exercises their cancellation rights as set out below. Details of the premium payable for applications submitted via a firm of solicitors can be provided upon request. Important Notice Executor s rights of cancellation You have the right to cancel the bond of caution within 14 days from the date you receive the executed bond from Zurich if the original bond is returned to Zurich together with signed confirmation that the bond has not been lodged with the court. Zurich will then be pleased to confirm that the bond has been cancelled and refund any premium paid. No administration fee will be retained by Zurich if a bond is cancelled in this way. You may be unable to exercise your cancellation rights if you decide to lodge or deposit the bond with the court during the 14 day cancellation period. Once the bond of caution is lodged with the court Zurich is fully committed to perform all obligations of a Cautioner, and we will only be able to confirm cancellation of the bond if the court makes an order confirming that the bond may be treated as released or cancelled without payment. The granting of such an order would be highly exceptional and there could be no certainty that it would be possible to procure the consent of the Court. N.B. Once a bond has been lodged with the court, you may incur costs and legal expenses in procuring cancellation. Once a bond is lodged (whether during or after the 14 day cancellation period) it is not within the power of Zurich to cancel the bond. Although Zurich will not make any administration or other charge for cancellation, you will be responsible for all costs and expenses, including any external or legal costs incurred by Zurich, if after lodging the bond with the court you wish to procure cancellation. Page 3 of 7

4 The cancellation of the bond would also invalidate the Executor s Confirmation so that the Executor could not ingather the estate. If cancellation of a bond in these circumstances is considered, legal advice should be obtained. N.B Consequences of not cancelling If a bond of caution is not cancelled and is lodged with the court it will become fully effective. Granting Confirmation Once the bond of caution is received, the Executor/proposed Executor must complete the bond by signing the reverse or second page of the bond (if not already done) before it is submitted to the court along with the Confirmation application form (C1 form) and the statutory court fee payable for issuing Confirmation. The bond of caution is effective once it has been lodged with the Sheriff Court, remains in force indefinitely and cannot thereafter be cancelled by the Executor or by Zurich. The Confirmation document should then be taken or sent to the holders of the estate assets who require the document in order to release funds. Only when the Executor is satisfied that all liabilities have been settled should the remainder of the estate be distributed amongst the beneficiaries. If any dispute or claim arises which affects the estate or its administration, Zurich must be advised by the Executor as soon as practicable. A short explanation of the terms used is set out on the next page. We have included information by way of general guidance which may be of assistance but we cannot give legal advice or take the place of your own lawyers or advisers. All Executors should seek the advice of solicitors. Glossary of terms Administration Assets Beneficiary(ies) Bond of caution Confirmation Distribution Estate Executor dative Intestate estate Inventory the process of managing the estate, from realising assets to final distribution to beneficiaries after all liabilities have been settled property of the deceased, including all monetary items person(s) who is/are entitled to a share of the net estate a guarantee issued by an authorised insurer that an intestate estate will be distributed correctly by the Executor the process of confirming the appointment of an Executor(s) and his or her right to receive money and other property belonging to a deceased person and to administer and distribute the estate the payment of the net estate to the beneficiaries the total gross assets of the deceased person person(s) appointed by the court to administer an intestate estate an estate without a valid will a list or schedule of articles included in an estate. This should include all assets which may comprise goods, property, money, shares or any other rights bearing a realisable value Large estate an estate with a value of more than 36,000 Laws of Succession Liability Realise assets Small estate Zurich rules governing the disposal of an estate in Scotland a debt or obligation which the estate is obliged to pay or discharge obtaining cash payments in respect of items contained in the estate an estate with a value of up to and including 36,000. (In calculating the value of the estate any debts owed by the deceased should not be deducted) Guarantor/Cautioner/Surety Every effort is made to ensure that the information contained in this publication is correct at the time of going to press. Page 4 of 7

5 Specimen Bond of Caution for information purposes only SHERIFF COURT OF IN SCOTLAND Bond No: We, Zurich Insurance Public Limited Company, a public limited company incorporated in Ireland (Registration No ) whose registered office is at Zurich House Ballsbridge Park Dublin 4 Ireland UK branch registered in England and Wales Registration No. BR7985 and whose address for service for the purposes of this bond is Zurich Surety of Cypress House 3 Grove Avenue Wilmslow Cheshire SK9 5EG England or such other address as shall be notified in writing from time to time do hereby as Cautioners and Sureties acted in the Sheriff Court books of in Scotland BIND and OBLIGE ourselves and our whole funds and property that the sum of.. ( ) contained in the Confirmation-Dative of the deceased.. late of. wherein of. is (or are) to be / has (or have been) decerned and is (or are) to be confirmed Execut.. Dative qua.. to the said Deceased, shall be made free and furthcoming to all parties having interest therein as law will the said Execut being always bound to relieve us as Cautioners in the premises; And the parties subject themselves, their heirs and successors, to the jurisdiction of the Sheriff of in the premises, and appoint the Sheriff-Clerk s Office at as a domicile whereat they may be cited to all diets of Court, at the instance of all and sundry having interest as law will, - holding any Citation legally affixed and left for them, or their foresaids, upon the walls of the said Office as sufficient as if they were personally summoned IN WITNESS WHEREOF Zurich Insurance Public Limited Company as Cautioners and Sureties and the said Execut.. have executed and delivered this bond Signed and delivered by as Attorney for Zurich Insurance Public Limited Company in the presence of: Signature of witness Name of witness Address of witness Cypress House, Wilmslow Occupation of witness Date Signed and delivered by the said Executor / trix ( ) At Date Before this witness: Signed Full Name Address Page 5 of 7

6 Complaints procedure Our Commitment to Customer Service We value the opportunity to look into any concerns you may have with the service we've provided and we're committed to dealing with all complaints fairly, consistently and promptly. Who to contact in the first instance Many concerns can be resolved straightaway, therefore in the first instance please get in touch with the advisor at Zurich who arranged the bond of caution for you. Please quote the bond number (if applicable), your full name and the full name of the Deceased. The address for all correspondence is:- Zurich Surety, Cypress House, 3 Grove Avenue, Wilmslow, Cheshire, SK9 5EG Telephone: surety.bonds@uk.zurich.com If, upon advice of your complaint, we cannot resolve it straightaway we will aim to resolve your concerns as soon as possible and we will keep you informed of progress while our enquiries are continuing. The majority of complaints we receive are resolved within four weeks of receipt. The Financial Ombudsman Service (FOS) If we are unable to resolve your complaint to your satisfaction within eight weeks or if you remain dissatisfied following receipt of our final response letter you may be able to ask the FOS to formally review your case. You must contact the FOS within six months of our final response. The FOS contact details are as follows: Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London, E14 9SR You can telephone for free on: for people phoning from a 'fixed line' (for example, a landline at home) for mobile-phone users who pay a monthly charge for calls to numbers starting 01 or 02 or complaint.info@financial-ombudsman.org.uk This is a free and impartial service and will not affect your legal rights. The FOS can help with most complaints if you are: - a consumer - a business employing fewer than 10 persons that has an annual turnover or balance sheet that does not exceed Euro2 million - a charity with an annual income of less than 1 million - a trustee of a trust with a net asset value of less than 1 million If you are unsure whether the FOS will consider your complaint please contact them directly for further information. You are entitled to contact the FOS at any stage of your complaint. I confirm that I have read and understood this Zurich Guide to bonds of caution in connection with executry estates in Scotland Print Full Name of Applicant Applicant s Address Signature of Applicant Print Full Name of Deceased V1.15 Date / / Page 6 of 7

7 Zurich Surety Cypress House, 3 Grove Avenue, Also at The London Underwriting Centre, 3 Minster Court Wilmslow, Cheshire SK9 5EG England Mincing Lane, London, EC3R 7DD, England Telephone: Telephone: Fax: Fax: surety.bonds@uk.zurich.com Zurich Surety is a division of Zurich Global Corporate UK. Zurich Global Corporate UK is a trading name of Zurich Insurance plc. Zurich Insurance plc, a public limited company incorporated in Ireland. Registration No Registered Office: Zurich House, Ballsbridge Park, Dublin 4, Ireland. UK Branch registered in England and Wales Registration No. BR7985. UK Branch Head Office: The Zurich Centre, 3000 Parkway, Whiteley, Fareham, Hampshire PO15 7JZ. Zurich Insurance plc is authorised by the Central Bank of Ireland and subject to limited regulation by the Financial Conduct Authority. Details about the extent of our regulation by the Financial Conduct Authority are available from us on request. These details can be checked on the FCA s Financial Services Register via their website or by contacting them on Our FCA Firm Reference Number is Page 7 of 7