Executry is the legal process of winding up someone’s estate after they die. In Scotland, whether or not there is a Will, the executor must gather the deceased’s assets, pay any debts and tax, and distribute what remains to the people entitled to it. Before they can act, the executor usually needs Confirmation, the Scottish equivalent of probate. This guide walks you through each stage, from the executor’s role to the final distribution of the estate.
Dealing with the estate of someone who has died is rarely something people feel prepared for. It arrives at a painful time, often alongside grief, and the process can feel unfamiliar and daunting. In Scotland, that process is known as executry, and it follows a clear legal path from start to finish.
This article explains what executry involves, who is responsible for it, and how the estate is eventually settled. It is written for anyone who has been named as an executor, or who expects to deal with a loved one’s affairs, and wants to understand what lies ahead. If you are planning your own estate rather than administering someone else’s, our guide to making a Will in Scotland may be a better starting point.
What Is Executry and What Does an Executor Do in Scotland?
Executry is the legal term for administering a person’s estate after their death. The estate is everything the person owned at the point of death, including money, property, savings, investments and personal belongings, less anything they owed. Someone has to take charge of gathering it all in, settling the bills, and passing on what is left.
That someone is the executor. An executor’s role carries real legal responsibility, so it helps to understand the duties involved from the outset. In broad terms, an executor must:
- Identify and value everything in the estate
- Apply for Confirmation where it is needed
- Settle debts, liabilities and any tax due
- Distribute the remainder to the beneficiaries
An executor can be named in the deceased’s Will, or appointed by the court where there is no Will. Either way, the law expects the estate to be administered accurately and in the right order. Getting that order wrong can leave the executor personally liable, which is why many people choose to instruct a solicitor to guide them through it.
The Difference Between Testate and Intestate Executry
Every executry in Scotland falls into one of two categories, and which one applies makes a real difference to how the process runs.
An estate is testate when the person left a valid Will. The Will names one or more executors, known as executors-nominate, who have authority to act from the moment of death. A testate estate is usually more straightforward, because the deceased has already said who should wind things up and who should inherit.
Where there is no valid Will, the estate is intestate. Nobody has been appointed to act, so the court must appoint an executor-dative instead, usually a close relative. The estate is then distributed according to the rules of intestacy under the Succession (Scotland) Act 1964, as amended by the Trusts and Succession (Scotland) Act 2024. Our article on what happens if you die without a Will in Scotland explains those rules in detail.
Intestate executry tends to take longer and cost more. There is an extra court step to appoint the executor, and in most cases a bond of caution (a form of insurance, explained below) is required before Confirmation can be granted.
Applying for Confirmation: The Scottish Equivalent of Probate
Confirmation is the legal document that gives an executor authority to deal with the estate. Without it, banks, building societies and other organisations will usually refuse to release the deceased’s money or transfer their property. In England and Wales the equivalent is called probate, but the Scottish process and paperwork are different.
How Confirmation is obtained depends on the size of the estate. Scotland draws a line between small estates and large estates:
- A small estate is worth £36,000 or less. The sheriff clerk’s office can help the executor prepare the inventory, and there is no court fee for issuing Confirmation.
- A large estate is worth more than £36,000. The court cannot assist with these, so legal advice is strongly recommended, and court fees apply on a sliding scale.
In both cases, the application is made on Form C1 to the sheriff court for the area where the person lived. The court examines the inventory of assets and, if everything is in order, issues the Confirmation. You can find the official guidance on the Scottish Courts and Tribunals Service website.
Where there is no Will, a bond of caution is generally needed before Confirmation is granted. This is an insurance policy that protects the beneficiaries against an executor who acts improperly. Our executry and estate administration service can arrange this and handle the whole Confirmation process on your behalf.
Gathering the Estate: What Assets Are Included and How They Are Dealt With
Once Confirmation is in hand, the executor can begin ingathering the estate, which simply means collecting in all the assets. This is often the most time-consuming stage, because every asset has to be identified, valued as at the date of death, and then realised or transferred.
Scots law divides an estate into two types of property. Heritable property means land and buildings, such as the family home. Moveable property means everything else, including bank accounts, savings, shares, cars and personal possessions. The distinction matters, because certain rights and rules apply differently to each.
Not everything necessarily passes through the executry. A house or bank account held in joint names with a survivorship clause may pass automatically to the surviving owner, outside the estate. Some organisations will also release small balances on production of a death certificate alone. For most assets of any real value, though, Confirmation will be required before they can be released.
Throughout this stage, the executor must keep careful records. They are accountable to the beneficiaries and must be able to show that every asset has been collected and dealt with properly.
Paying Debts, Liabilities and Tax Before Distributing the Estate
An executor cannot simply hand out the estate to the beneficiaries. Debts and liabilities have to be settled first, and only what remains can be distributed. Getting this sequence wrong is one of the most common and costly mistakes an executor can make.
The debts to be cleared include funeral expenses, outstanding utility bills, income tax and any mortgage secured over property. Alongside these, the executor must consider whether inheritance tax is due on the estate.
Most estates in Scotland pay no inheritance tax at all. Tax is only charged where the estate is worth more than the available threshold. Every person has a nil-rate band of £325,000, and a further residence nil-rate band of up to £175,000 can apply where a home is left to children or grandchildren. Anything passing to a spouse or civil partner is normally exempt. Above the threshold, inheritance tax is charged at 40%. You can check the current rules on the GOV.UK inheritance tax pages.
Timing matters here. Where inheritance tax is payable, it is generally due by the end of the sixth month after the person’s death, and interest is charged on anything paid late. In practice, the tax often has to be dealt with before Confirmation can be granted, which is another reason to seek advice early.
Only once debts and tax are settled can the executor distribute the estate. Even at this stage, certain family members may be entitled to a fixed share of the moveable estate under Scotland’s Legal Rights, whatever a Will says. Our intestacy article covers Legal Rights in more detail.
When Does Executry Become Complicated, and When Should You Seek Help?
Some estates are relatively simple: a modest estate, a valid Will, a single beneficiary and no property to sell. Many are not. A number of factors can turn a straightforward executry into a complex one.
Common complications include:
- Heritable property that has to be valued, transferred or sold
- An inheritance tax liability, with forms and deadlines to meet
- Business interests, trusts or assets held abroad
- No valid Will, so intestacy rules and a bond of caution come into play
- Disputes between beneficiaries, or a claim for Legal Rights
- Beneficiaries who cannot be traced
Any of these can add months to the process and increase the risk of a costly error. Because an executor is personally responsible for administering the estate correctly, mistakes are not just stressful; they can carry real financial consequences.
This is where professional help earns its keep. A solicitor can take on as much or as little of the work as you wish, from advising on a single point to handling the entire administration. If you are unsure whether you need help, it is always worth asking before you take a step you cannot easily undo.
Why Choose Pomphreys?
Pomphreys has been supporting families across Wishaw, North Lanarkshire and the wider area since 1897. Our experienced Executry Department deals with estates of every size and complexity, and we understand that behind every executry is a family coping with loss.
We can guide you through the whole process, or simply take on the parts you would rather not handle yourself. That includes obtaining valuations, preparing the inventory, agreeing any tax liability, applying for Confirmation, and distributing the estate to the beneficiaries. Where trusts are involved, we can advise on those too.
Above all, we aim to lift the legal burden from your shoulders at a difficult time, dealing with everything discreetly, sympathetically and correctly, so that you have the space to grieve.
If you have lost a loved one and need help dealing with their estate, Pomphreys is here to make things easier. Call us today on 01698 373365 for a friendly, no-obligation chat, or get in touch through our online contact form and we will get back to you promptly.
Frequently Asked Questions about Executry in Scotland
What is Confirmation and do I need it to deal with an estate in Scotland?
Confirmation is a document issued by the sheriff court that gives an executor legal authority to deal with a deceased person’s estate. It is the Scottish equivalent of probate in England and Wales. In most cases you will need it, because banks, building societies, investment providers and the Land Register will usually refuse to release money or transfer property without it. You may be able to avoid Confirmation where the estate is very small, or where assets were held jointly and pass automatically to a survivor. If you are unsure, it is best to check before assuming one way or the other.
How long does the executry process take in Scotland?
There is no fixed timescale, because so much depends on the size and complexity of the estate. A straightforward estate might be wound up in around six months to a year, while a complex one involving property, inheritance tax or a dispute can take considerably longer. Delays often come from waiting on valuations, tax clearance or responses from banks and other institutions. Instructing a solicitor early tends to keep things moving and helps avoid the hold-ups that catch executors out.
What is the difference between an executor-nominate and an executor-dative?
An executor-nominate is named in the deceased’s Will and has authority to act from the moment of death. An executor-dative is appointed by the court where there is no Will, or where a Will fails to name an executor able to act. The practical difference is that appointing an executor-dative adds an extra court step, and usually requires a bond of caution before Confirmation can be granted. This is one of several reasons why administering an intestate estate typically takes longer than a testate one.
Do I need a solicitor to deal with an estate in Scotland?
You are not legally required to use a solicitor, and executors do sometimes handle small, simple estates themselves with help from the sheriff clerk. However, an executor is personally responsible for administering the estate correctly, and mistakes can be costly. Where the estate includes property, a possible inheritance tax liability, a business, or any hint of a dispute, professional help is well worth having. A solicitor can take on the whole administration or just the tricky parts, giving you confidence that everything has been done properly.
This article is by Sarah Lynch
Sarah Lynch, Managing Partner
Sarah Lynch is the Managing Partner at Pomphreys. Sarah studied at Dundee University, achieving a 2:1 LLB Honours degree in Scots Law. She then moved back to Glasgow to study the Diploma in Legal Practice, being one of only a small number of students to be offered a funded position for academic excellence achieved during the LLB. Sarah then secured a traineeship concentrating on Personal Injury before deciding to broaden her scope of work to all civil litigation. We recently caught up with Sarah to discuss her role in Pomphreys.
Tel: 01698 373 365
Email: sl@pomphreyslaw.com
