FREE CHAPTER from ‘How to Settle an Estate in Scotland – A Practical Guide – Second Edition’ by Stephanie Christie-Carmichael

15/09/2025

CHAPTER TWO – INTESTATE ESTATES

According to research, around 6 out of 10 adults in the UK don’t have a Will[1]. Business development opportunities on the Will writing front aside, this means that more likely than not, you are going to have to administer an intestate estate (that is to say where the person died without leaving a Will) at some point in your career. In my experience, it also means that the estate is naturally going to cost more to administer as there are certain additional hoops that those connected to the estate are going to need to jump through to bring the estate to a close that would not be required had a Will been in place. An intestacy, in my experience, can expect to add 9–12 weeks as a minimum into the preliminary administration of the estate before you can obtain Confirmation.

Is a solicitor required?

The first question you should ask yourself is should you take on an intestate estate in the first place? The Sheriff Court local to where the deceased was domiciled can deal with the appointment of the Executor Dative and prepare the Confirmation application for free (although usual commissary fees apply) where the estate is classed as a small estate[2]. A small estate is currently where the total of the gross assets is less than £36,000[3]. A redirection of the prospect to the local Sheriff Court also dispenses with the need to obtain a Bond of Caution (pronounced “kay-shun”) – a special type of insurance specific to Scotland which normally requires to be obtained when dealing with most intestate estates that require Confirmation. Please note that dispensing with the need to obtain a Bond of Caution where the Sheriff Court is preparing the paperwork only works if there is no competition for the role of Executor. Where there is competition for the role of Executor, a solicitor will need to become involved as the estate will likely involve an appearance in front of a Sheriff to resolve who out of the competing parties should be appointed as Executor (or in some cases, conjoin the appointment of Executors which is not without its own problems, particularly where the Executors do not get along!).

If you take on a small estate, you will need the Bond of Caution before you can apply for Confirmation which will add roughly 4-6 weeks onto the administration time with a starting insurance premium of around £270[4]. From a public relations point of view, directing a client to the Sheriff Court where there is a small estate could well gain you a substantial amount of good will and encourage the client to come back to you for further work on the basis that you appear to be one of the few and far between non money grabbing lawyers (since our profession seems to be tarred with that brush!). It will also help the prospect retain more of their inheritance as inevitably the administration fees for the administration of a small estate are disproportionately high percentage wise compared to the value of the estate.

Appointment of Executor

Where the estate cannot be dealt with via the Small Estates procedure, the first thing you will need to do is have an Executor Dative discerned. This will normally be the person with the closest degree of relationship to the deceased in terms of who is entitled to inherit[5]. It will come as no surprise that families do not always tell the truth about the extent of their family and therefore when piecing together the family tree, it is always best to have it checked by a genealogist. Many offer a free checking service for your family tree. Details of genealogists are available at the useful addresses section of this book. It is also worth acknowledging that those left behind after the death may not be party to family secrets and therefore if there are additional children found or a child’s sister is found to actually be their mother, it goes without saying that you need a large dose of diplomacy, empathy and tact when delivering news which will alter who is entitled to what from the estate. The delivery of such news may also alter the future relations between the various parties and not always for the better where affairs are revealed or someone finds out that who they thought their parents were are not in fact their biological parents.

The appointment of an Executor Dative is conducted by lodging an initial Writ with the Sheriff Court where the deceased was domiciled narrating the details of the death, the relatives the deceased was survived by along with those relatives who predeceased or divorced the deceased who would otherwise have preference to the party seeking appointment, confirmation that the petitioner is entitled to some or all of the estate and the capacity in which the petitioner should be discerned as Executor Dative eg as Executor Dative qua sister of the full blood of the deceased.

Styles for drafting the Initial Writ are outwith the scope of this book. Styles can however be found in “Currie on Confirmation” 9th Edition by Eilidh M Scobbie which is a fantastic resource for navigating even the most complex of drafting for the initial appointment of an Executor Dative.

Once lodged with the Sheriff Court, the details of the petition will be lodged on the Walls of Court. How long it will take for the details to appear on the Walls of Court will depend on how busy the courts are. Once 14 days have expired from the date that the details of the petition are lodged on the Walls of Court, if there are no objections, the petition will be granted. A copy of the interlocutor will thereafter (usually) be emailed to the solicitor thereafter. The current petition fee is £22[6].

Bond of Caution

Once you have your Executor or Executors appointed, you will need a Bond of Caution before you can proceed to obtain Confirmation to the estate. The only exception to this other than where the estate is a small estate is where the estate passes in full to the surviving spouse/civil partner[7].

A Bond of Caution is a special type of insurance designed to cover the situation whereby the Executor fails in his or her duty to administer the estate. It does not provide insurance for the Executor but rather is designed to protect beneficiaries and creditors of the estate. In effect, the Cautioner (the body providing the insurance) will guarantee the payments that should be made from the estate and will settle any due claims where the Executor has failed to do so. The Executor in turn will require to put the Cautioner back into the position that they would have been in had the Executor not failed in the exercise of their obligations.

Insurers for providing Bonds of Caution are few and far between in Scotland. There is a list of current providers at the back of this book under useful addresses but please check at the point of obtaining a Bond of Caution as insurers tend to come and go in Scotland for this type of insurance. There have been points in time where there has only been a single Caution provider.

In order to apply for a Bond of Caution, you will need:

  1. An irrevocable mandate from the Executor in favour of your firm to administer the estate;
  2. A Bond of Caution signed by the Executor (which will in turn be counter signed by the insurer once the application has been approved);
  3. A copy of the Confirmation application that will be submitted;
  4. An application form narrating the details of the estate and the division of the same;
  5. Copies of any deeds of variation, declinature of entitlement etc;
  6. In the event that there is a Will, you will need to include a copy of the Will and explain why the estate requires a Bond of Caution[8]; and
  7. Payment for the expected Bond of Caution fee

If you do not have ready cash within the estate at the point of applying for the Bond of Caution, ask your Executor to provide the funds. This should then be refunded to them out of the estate prior to any distributions being made to beneficiaries.

It will also normally be a condition of obtaining the Bond of Caution that you obtain clearance from the Department of Work and Pensions that there are no sums due to the estate. The easiest way to deal with this is to write to the debt management team of the Department of Work and Pensions[9], advise of the estimated assets of the estate and ask them to confirm that no benefits have been overclaimed during life and whether any overpayments of properly claimed benefits have occurred which will need to be repaid by the estate (if any).

Division of the Estate

The division of an intestate estate follows the division rules set out in the Succession (Scotland) Act 1964 as amended and the Trusts and Succession (Scotland) Act 2024 and are as follows:

  1. 100% to the spouse/civil partner where the prior rights of a spouse/civil partner[10] exhaust the whole estate OR where the deceased is survived by a spouse/civil partner but no issue[11];
  2. Where a spouse/civil partner is not entitled to take the whole estate, the prior rights of the spouse take first priority then the spouse/civil partner is entitled to legal rights in the remaining moveable estate which will equate to one half where there are no children, and one third where there are children of the deceased. Thereafter if there are children of the deceased (or remoter descendants in the case of a predeceasing child), the remainder of the estate passes to the children or their issue in the case of a predeceasing child to the exclusion of the spouse/civil partner.
  3. Where there are no children nor a surviving spouse/civil partner, the estate passes to the parents/siblings of the deceased with representation by issue.
  4. Where there are no children or remoter descendants, siblings or remoter descendants, parents or spouse/civil partner to inherit, succession to the estate follows the family tree up the way branch by branch until a generation is located to inherit the estate;
  5. If there are no living family members to be found, the estate passes to the Crown as ultimus haeres.

If you suspect that there will be no family of the deceased to be located, contact the National Ultimus Haeres unit[12] as soon as possible for guidance on whether you should continue to act.

Confirmation

Once the Bond of Caution has been obtained, this is then lodged with the application for Confirmation and the remainder of the estate is administered as usual.

Disengagement

Please note that unlike any other piece of work you may take on for a client, where there has been a Bond of Caution issued, the client cannot simply decide to un-instruct you. Where the client is unhappy with your handling of the estate or a conflict arises that requires you to disengage, the client will need to instruct another solicitor to continue acting and the Cautioner will need to be advised and consent to the change in representation otherwise the Executor can find themselves in breach of the terms of the Bond.

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[1]    See www.unbiased.co.uk’s 2015 article “ UK’s will-writing ‘black holes’ revealed by research for unbiased.co.uk’s Write A Will Week”

[2]    Intestates Widows and Children (Scotland) Act 1875; Small Testate Estates (Scotland) Act 1876; Confirmation of Small Estates (Scotland) Act 1979 as amended

[3]    The Confirmation to Small Estates (Scotland) Order 2011 SSI 2011/435

[4]    Starting premium from RSA as at November 2024

[5]    S2 Succession (Scotland) Act 1964

[6]    As at November 2024. The fees change from time to time. Fees can be checked at www.scotcourts.gov.uk/ru les-and-practice/fees/sheriff-court-fees. Select “Commissary” for estate related fees.

16   Either where the deceased was not survived by any prior relatives under S77 Trusts and Succession (Scotland) Act 2024 or where the Spouse’s prior rights exhaust the whole estate under S8-9 Succession (Scotland) Act 1964 as amended.

[8]    For example, the Will may be invalid or you may have to have an Executor Dative appointed where there is a valid foreign Will with assets in Scotland but the Will does not appoint an Executor as the jurisdiction in which it was executed does not require such an appointment.

[9]    Department for Work and Pensions, Recovery from Estates (Scotland), Debt Management (RES), Mail Handling Site A, Wolverhampton, WV98 2DH

[10]   S8-9 Succession (Scotland) Act 1964 as amended.

[11]   S77 Trusts and Succession (Scotland) Act 2024 for deaths on or after 30 April 2024.

[12]   The National Ultimus Haeres Unit, Procurator Fiscal Office, Cameronian House, 3/5 Almada Street, Hamilton, ML3 0HG