Administering a loved one’s estate can be overwhelming. Alongside emotional challenges, there are legal and practical steps that must be followed carefully.
We provide clear, compassionate guidance through each stage of Estate Administration, including:
- Preparing necessary documentation and applying for Confirmation
- Identifying and collecting assets
- Settling debts and funeral expenses
- Distributing the estate to beneficiaries
- Advising you on legal rights and succession rules
With extensive experience in Estate Administration across Scotland, we support you through the process efficiently and sensitively at what is often a difficult time.
Intestacy in Scotland
If someone dies without leaving a valid Will, they are said to have died intestate. In these circumstances, strict legal rules determine who inherits the estate and who may be appointed as executor. This can make the administration process more complex.
We guide you through the correct legal procedure to ensure the estate is administered in accordance with Scots law.
Appointment of Executor-Dative
Where there is no Will, the executor must be formally appointed by the Sherriff Court. This person is known as the Executor-Dative. You do not need to attend at court. Instead your solicitor will lodge the paperwork. This typically takes in the region of 3 weeks.
There are rules to follow when determining who can apply. Once we have determined who is entitled to be appointed as executor, we will prepare the necessary court application (known as the Initial Writ), seeking appointment of the Executor-Dative. This document includes the following information:
- Where the deceased was domiciled
- The relationship between the deceased and proposed Executor-Dative
- Details of other surviving relatives
The application is submitted to the deceased’s local Sheriff Court.
Bond of Caution
In most intestate estates, a Bond of Caution is required before the court will grant Confirmation.
A Bond of Caution is an insurance policy that acts as a safeguard, if the executor makes an error while administering the estate, a claim can be made against the Bond. This will not be required in the event of a surviving spouse inheriting the entire estate.
We obtain the Bond of Caution on your behalf.
Applying for Confirmation
Once the Executor-Dative has been appointed, we prepare the application for Confirmation. This involves the following:
- Gathering date-of-death balances for all assets and debts
- Preparing full inventory of the estate
- Completing the necessary forms including a C1 form
- Preparing inheritance tax returns where necessary
The estate is made up of both:
- Heritable property e.g. property and land
- Moveable property e.g. bank accounts, shares and any personal belongings
If necessary, Inheritance Tax must be paid to HMRC before Confirmation can be granted.
Once Confirmation is issued, the executor has legal authority to collect assets, settle debts and distribute the estate to beneficiaries.
How the Intestate Estate is Divided
Where there is no Will, the estate is distributed in the following order:
1. Prior Rights (Spouse or Civil Partner only)
If the deceased is survived by a spouse or civil partner, they are entitled to Prior Rights, these include the following:
- The family home (up to the value of £473,000)
- Household contents (up to the value of £29,000)
- A cash sum of £50,000 (if the deceased left children), £89,000 (if the deceased left no children)
Prior Rights are satisfied before the remaining estate can be distributed.
1. Legal Rights (Spouse/Civil Partner and Children)
If the estate has not been exhausted by Prior Rights, Legal Rights can then be calculated. Legal Rights apply to the moveable estate only.
Only a surviving spouse or civil partner and children (including adopted children but not stepchildren) are entitled to Legal Rights.
The entitlement is:
- If spouse/civil partner only they are entitled to one half of the moveable estate
- If children only they are entitled to one half of the moveable estate shared equally among them
- If both spouse/civil partner and children one third to the spouse/civil partner and one third shared equally among the children
If a child has predeceased leaving children of their own, those grandchildren would inherit their parents share.
1. The Free Estate
Any heritable or moveable property left over after the Prior Rights and Legal Rights have been satisfied falls to the Free Estate.
This is distributed in the following order:
- Children (including adopted, but not stepchildren)
- Spouse or civil partner
- Parents and siblings
- More distant relatives (including aunts, uncles and grandparents)
- If no relatives are identified, the estate passed to the Crown (e.g. the government)
You may have noticed that the law does not account for any automatic entitlement of cohabitants / unmarried partners. An application must be made to the Sheriff Court within 6 months for a discretionary award from the estate.
Make a Will today and avoid the complexities of Intestacy
Intestacy can significantly complicate the Estate Administration, preparing a Will ensures your wishes are followed and reduces the stress and uncertainty for your family.
