The Importance of Legal Ownership When it Comes to Losing a Loved One

Published byRebecca Dyer

27th January 2026

Losing a loved one is never easy, and dealing with their estate can often feel extremely overwhelming. Whether you have been appointed as an executor of an estate, whether that be under the terms of the Will or by Court appointment (Dative Petition), you are responsible for handling the estate – a process that involves everything from valuing assets and settling debts to ensuring the correct beneficiaries receive their inheritance.

Perhaps one of the most important steps of the process is obtaining Confirmation from the Court, which gives executors the legal authorisation to administer the estate. While it is not a legal requirement to use a solicitor, seeking legal advice can help avoid complications - particularly when it comes to property ownership.

With that said, executors must be careful if they decide to deal with the estate themselves, particularly if the deceased owned land and buildings (heritable property), as we are seeing an increase in problems arising on the second death where properties are jointly owned.

Aside from dealing with the valuation of the property and the other assets, executors must ensure that they check the paperwork of the property (known as title deeds) to establish how the property is owned. It may be that these documents are being stored by the deceased’s solicitor or in the property itself.

If this step is overlooked, it can create unexpected legal hurdles. For example, if the person who has died owned a half share of the property, and the other half was owned by their surviving spouse/partner, the issue may only come to light when they themselves pass away.

While ownership of a property can automatically transfer (by survivorship destination in the title deed) to the surviving spouse/partner without the requirement for Confirmation of that asset, the number of people opting not to include this special destination in the title deeds has increased, given the complications such survivorship destinations can cause.

Staying with the example above, if the title deeds provide that ownership will not transfer automatically on the death of one owner, then Confirmation for that half share ownership of the property will need to be obtained because that document will be required if and when the property comes to be sold or otherwise conveyed.

It is therefore essential to check the title deeds of the property (or properties) the deceased owned as at the date of death to establish if Confirmation is required for these assets. The risk of not doing so, for example, is that when the surviving spouse/partner dies, Confirmation will be required for both estates because the half share of the first deceased has not been dealt with. This can lead to further complications and significant delays with the sale of the property.

To avoid such difficulties, executors should seek legal guidance, even if only to review the title deeds and confirm what legal steps need to be taken. While the process of handling an estate is complex, being thorough from the outset can prevent costly and time-consuming issues down the line.

This article first appeared in Wire Magazine