Executries in Scotland – A Practical Overview

Introduction

Coping with the death of someone close is without doubt a difficult time, and it is natural to feel overwhelmed. Alongside the emotional impact, there are legal responsibilities that must be dealt with after a death.

This guide explains, at a practical level, what an Executry involves in Scotland and what to expect during the process. It is designed to provide a clear overview and can be referred to as matters progress.

What is an Executry?

An Executry is the legal process of administering a person’s estate after their death. This involves gathering assets, settling any debts and liabilities, and distributing the estate in accordance with a Will or, where there is no Will, in line with the rules of intestacy.

The rules of intestacy set out who is entitled to benefit from the estate and in what order. These rules can be complex, and there are significant differences between the law of succession in Scotland and other parts of the UK.

Key terms

• Executry: The legal process of winding up a person’s estate after death.
• Executor-nominate: A person named in a Will to administer the estate.
• Executor-dative: A person appointed by the court to administer the estate where there is no Will.
• Confirmation: The court-issued document that gives an Executor legal authority to administer the estate (often compared to probate in England & Wales).

Who is the Executor?

The Executor is the person (or people) responsible for administering the estate.

• If there is a Will, the Executor will usually be named in that document (the executor-nominate)
• If there is no Will, an application must be made to the court for an Executor to be appointed (the executor-dative)

It is important to note that a Power of Attorney ends on death. Acting as Attorney during someone’s lifetime does not give authority to deal with the estate, and it does not automatically mean you are the Executor.

It is also important to be aware that even if you are the next of kin, you may not have been appointed as Executor in the Will. When notifying organisations or using services such as Tell Us Once, you should make clear whether you are acting as Executor.

Do Executors need legal support?

Executors may need legal support regardless of the size of the estate. Some estates are straightforward, while others involve legal, tax, or practical issues that benefit from professional guidance.

Knowing where to start can feel overwhelming, particularly when you are also dealing with bereavement.

At Hastings Legal, we can provide advice at an early stage, including whether the estate will require Confirmation and what steps are involved in administering it correctly.

As an Executor, you are responsible for:

• preparing an accurate inventory of the estate for the court
• dealing with any tax matters and reporting to HMRC where required
• settling debts and liabilities
• distributing the estate in accordance with the Will or the rules of intestacy

Executors can become personally liable if the estate is not administered correctly, which is why legal advice is often recommended.

What does the Executor need to do?

The Executor is responsible for managing the estate from start to finish.

This will usually involve identifying and gathering the deceased’s assets, arranging valuations where required, and applying for Confirmation where necessary. The Executor must also deal with tax matters, settle debts and liabilities, and ensure the estate is distributed correctly.

In some cases, this may also include dealing with property or land, handling shares or investments, and addressing any legal rights claims.

Not every estate will involve all of these steps, and the level of work required will depend on the nature and complexity of the estate.

Confirmation and legal authority

In many estates, the Executor will require Confirmation before assets can be accessed or dealt with.

Confirmation is a court-issued document which gives the Executor legal authority to intromit with and administer the estate.

Whether Confirmation is required will depend on the nature of the assets, the value of the estate, and the requirements of banks and other organisations.

Property and the Executry process

Where an estate includes property, Confirmation is usually required before a sale can be completed or before title can be transferred into the name of a beneficiary. This can affect timescales and may add pressure for Executors, particularly where the property is empty, tenanted, or being sold from a distance.

Property matters often need to be managed alongside the wider Executry process. If a property is unoccupied following the death of the owner, it is important to ensure that appropriate house insurance is in place.

Timescales and delays

Executries vary significantly in length. Timescales will depend on factors such as the size and complexity of the estate, whether Confirmation is required, and the speed of responses from third parties.

Once the extent of the estate is known, it may be possible to provide an approximate timescale. However, delays outwith anyone’s control are common.

How Hastings Legal can help

The team at Hastings Legal understands the trust placed in us when dealing with an estate. We aim to provide clear, careful, and respectful support throughout the Executry process.

Executors can choose the level of assistance that suits them, from guidance on specific issues to full administration of the estate. With the right support in place, Executors can focus on personal matters while the legal process is handled.