Here, in plain Scottish,
we explain some of the terms you may come across in relation to Executries.
Beneficiary
Someone who derives advantage from something, such as a trust, will, or life insurance policy. Other synonyms are: heir, heiress, inheritor, legatee; recipient, receiver and heritor.
Bond of Caution
A Bond of Caution (pronounced ‘cayshun’) is an insurance policy that guarantees that the executor does his/her job as executor properly. Once Bond of Caution has been obtained Confirmation will be applied for and the estate can be ingathered.
If the executor distributes the estate wrongly then a creditor or beneficiary who is legally due money or property from the deceased’s estate needs to pursue the executor. If that still does not get them what they are legally due from the estate then they can claim against the cautioner. The cautioner then pays up and pursues the individual who is the executor for what they have paid out on his/her behalf.
It is a common misconception that a Bond of Caution gives protection to Executors against distributing the estate to the incorrect beneficiaries. Go to ‘Missing Beneficiary Indemnity Insurance’ listing for more information.
Confirmation when there is a will
- Before an Estate can be ingathered and then distributed to beneficiaries an official document called a Confirmation must be applied for from the Court. Confirmation proves to organisations such as banks, building societies and the like that the executor has the appropriate authority to gather together the deceased’s estate.
- If the deceased person was the owner of land, a Certificate of Confirmation will be required to register the beneficiary as the new owner of the land in the Land Register.
Confirmation when there is not a Will
- Where no Will has been left the executor is appointed by the Court. There are rules governing the appointment of executors in this situation and legal advice should be sought.
- Before applying to the Sheriff Court for Confirmation, in an Intestate Estate, you have to obtain a Bond of Caution.
- After confirmation has been granted the executor distributes the estate in accordance with the law of succession of Scotland.
In English law, where there is not a Will, it is called Letters of Administration. Where there is a Will, it is called Grant of Probate.
Court
This is the Sheriff Court. In the Scottish Borders the Sheriff Courts are in Selkirk and Jedburgh.
Distribution of the Estate
If the estate is small and uncomplicated then it should be distributed after six months. The Law Society guidelines stipulate that the estate should not be distributed until six months have elapsed from the date of death. Larger or complicated estates can take quite a bit longer.
Dying in Scotland
In Scotland, Confirmation must be obtained. Where a deceased person has died whilst domiciled in Scotland, the law of Scotland will govern the succession to his moveable estate wherever this is situated and also to any heritable estate (houses, buildings or land) held by the deceased person in Scotland.
Dying outwith Scotland
In a case where the deceased person has died whilst domiciled out-with Scotland, the law of Scotland will still govern the succession to any heritable estate (houses, buildings or land) owned by the deceased and located in Scotland.
Executors
Executors are appointed either by
- having been named in the Will
- by the Sheriff Court if no Will has been left. The Executor in most cases will be the next of kin but could be a solicitor.
- If a Will was left but no executor named legal advice should be sought.
It is common for a Will to name more than one executor. If this happens the executors should preferably reach agreement as to whether they all wish to accept the appointment of executor. When dealing with larger estates or if there is argument amongst beneficiaries, it is sometimes beneficial for the executors to deal with everything jointly.
- A solicitor can be named as an Executor in the Will. Sometimes a firm of solicitors will be named as executor.
Executors Duties
- ingather the whole estate
- Pay debts and settle all liabilities
- redistribute the estate according to the terms of the Will, or if no Will was left, according to the Law of Succession.
Executors Responsibilities
It has to be borne in mind that the duty to distribute the estate is subject to any legal rights which any spouse, children or other claimant may have under Scots law. See ‘Missing Beneficiary Indemnity Insurance’.
Executry
The legal procedure to be followed that allows the deceased’s estate to be wound up and distributed to the beneficiaries.
Executry Solicitor
The Executors of the Will are the representatives of the deceased so it is the Executors who are the clients of an Executry Solicitor and from whom the solicitor takes instructions. It is possible to apply for and obtain Confirmation without employing a Solicitor, especially when dealing with a Small Estate. When dealing with larger estates or if there is a possibility that Inheritance Tax may be payable, or if the distribution of the estate is likely to be contentious, it is recommended that you seek legal advice.
Heritable Property
This means land and buildings. Moveable property includes such things as money, shares, cars, furniture and jewellery.
Inheritance Tax
In both Testate and Intestate Estates there may be Inheritance Tax to be paid. All Executry estates over a certain level are liable to pay Inheritance Tax. The Inheritance Tax calculation is often very complex and it has to be paid within six months of the date of death or interest will start accruing.
Intestate
When someone dies without having left a Will they are said to be intestate
Inventory
Before applying for Confirmation the Executors compile an inventory detailing all assets and liabilities.
Law of Succession
The Succession (Scotland) Act 1964 came into operation on 10th September 1964 and was revised in 2005.
Legal Rights
In the event that the spouse or children have not been named as beneficiaries in the Will legal advice should be sought before the estate is distributed.
Missing Beneficiary Indemnity Insurance
It could be that after a deceased persons estate has been distributed between three children it transpires that there were in fact four children. The fourth child will have lost out on his entitlement to the estate. A ‘Missing Beneficiary Indemnity Insurance’ protects the executor from that claim and will settle the fourth son’s share of the estate.
It is worth noting that:
- There is legal equality for all children whether or not their parents have ever been married to each other.
- Adopted children also have legal rights to their share of the estate.
- Male children do not have precedence over female children.
Moveable property
This includes such things as money, shares, cars, furniture and jewellery.
Probate
Probate and Letters of Administration are terms used in English Law. Confirmation is the Scottish equivalent. They are normally granted when a person dies whilst domiciled in England, Wales or Northern Ireland. Such grant will normally also cover estate situated in Scotland.
Simple Will
Most Wills are fairly straightforward consisting of a few investments, some insurance, a bank account and possibly a house and contain relatively few clauses containing legacies to a small number of people or organisations.
Small Estates
When dealing with a Small Estate, the executor appointed in the Will should consult with the Sheriff Clerk at the local Sheriff Court in whose district the deceased previously lived who will assist in completing the necessary forms. If no Will exists an application for appointment as executor has to be lodged with the court.
Testament
The collective term used to describe all the documents relating to the executry of a deceased person. Every testament has an inventory of the dead person’s property. This may be a brief summary valuation of the goods involved, or it can be a long list of individual items and valuations. Some testaments include a will in which case it is known as a ‘testament testamentar’ (the English equivalent is ‘probate’). If there was no will, it was called a testament dative (the English equivalent is ‘letters of administration’)
Testate
When the deceased has left a Will
Will
A statement of how as person wishes their wordly goods to be disposed of among their family and friends and sometimes including instructions for funeral arrangements.
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