What does an executry solicitor do in Scotland?
An executor is the person legally responsible for winding up the estate of someone who has died. Many
people search for probate, but in Scotland the equivalent court document is called
confirmation. An executry solicitor can act for the executors or carry out most of the
work on their behalf, including:
- identifying and valuing the deceased's money, property and debts
- preparing the inventory of the estate and applying for confirmation
- dealing with HMRC on any inheritance tax
- collecting in bank balances, investments and other assets
- paying debts and expenses
- working out who is entitled to what, and paying them
-
arranging the sale or transfer of a house through
conveyancing solicitors where needed
Executor-nominate and executor-dative: what is the difference?
An executor-nominate is named in the deceased's will. If there is no will, someone has
to apply to the sheriff court to be appointed executor-dative, which uses a procedure
called a dative petition. Where the estate is not a small estate, the Scottish Courts and Tribunals
Service advises taking legal advice before making that application.
Since 26 June 2024, the court can remove an executor who is being prosecuted for, or has been convicted
of, the murder or culpable homicide of the deceased.
How does confirmation work in Scotland?
Confirmation is a legal document from the court that gives the executors authority to uplift the
deceased's money and other property. To apply, the executor lists the deceased's property in an
inventory, using form C1, and lodges it with the sheriff court for the area where the deceased was
domiciled. There must be at least one item of property in Scotland. Where the deceased had no fixed or
known domicile, or was domiciled abroad, the application goes to the commissary office at Edinburgh
Sheriff Court. Where there is no will, the executor may also need a bond of caution: a guarantee,
usually obtained from an insurance company, that the executor will carry out their duties properly.
Small estates
An estate is a small estate if the total value of the deceased's money and property is £36,000 or less.
Debts are not deducted for this purpose, and bank balances should include interest up to the date of
death. For a small estate, you can ask the sheriff clerk's office to complete the inventory for you, by
appointment, and where it helps prepare the inventory you do not need a bond of caution. Estates above
£36,000 are large estates.
Inheritance tax is a UK-wide tax collected by HMRC. For deaths on or after 1 January 2022, the separate
C5 forms no longer need to be completed for confirmation. If the estate owes inheritance tax, its value
must be reported to HMRC within one year using form IHT400, and any tax should be paid by the end of the
sixth month after the death to avoid interest. There is normally no inheritance tax to pay if the estate
is below the £325,000 threshold, or if everything above the threshold passes to a spouse, civil partner
or charity.
How is the estate distributed?
Once confirmation has been granted and assets have been collected, debts and liabilities are paid first.
If there is a will, the estate is then distributed under its terms, subject to any claims for
legal rights by a surviving spouse, civil partner or children, who can claim part of
the moveable estate instead of what the will leaves them. If there is no will, the order is prior rights
for a surviving spouse or civil partner, then legal rights, then the free estate under the Succession
(Scotland) Act 1964. Our guide to
wills and estate planning solicitors in Glasgow
explains these rights in more detail.
Executors also need to be aware that a surviving cohabitant of someone who died without a will may apply
to the court for part of the estate within six months of the death.
How long does executry take in Scotland?
There is no fixed legal timetable for winding up an estate. The time needed depends on the size and
complexity of the estate, whether a house has to be sold and whether any claims are made. The
established deadlines relate to inheritance tax: paying any tax by the end of the sixth month after the
death to avoid interest, and reporting the estate within one year where tax is owed.
How do I choose an executry solicitor in Glasgow?
Check the solicitor holds a practising certificate using the Law Society of Scotland's Find a Solicitor
search, and look for a team that handles executries regularly. Our guide on
how to choose a solicitor in Scotland explains what
else to check.
Questions to ask at a first meeting:
- How many executries does your team handle, and who will do the work?
- Will you act as executor, or advise the family members who are executors?
- Is this a small estate, and do we need a bond of caution?
- Is any inheritance tax likely to be due, and when?
- How will you keep the executors and beneficiaries informed?
- How will you charge, and will you confirm that in writing?
What does an executry solicitor cost, and is legal aid available?
Law Society of Scotland rules require your solicitor to set out in writing, at the earliest practical
opportunity, the work to be done and either an estimate of the total fee or the basis of charging. Ask
how fees will be calculated and when they will be paid. For a small estate, you can apply for
confirmation without a solicitor with help from the sheriff clerk, though a statutory court fee still
applies.
Advice and assistance from the Scottish Legal Aid Board can help pay for a solicitor's advice on Scots
law, depending on your finances, and you apply through a solicitor who does legal aid work.
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