When someone dies without a Will, it’s called dying ‘intestate’. This means the law, not the family, decides who inherits, and who’s allowed to be the ‘Executor’ - the person or people who deal with the estate.
What comes before this
Who can act as Executor?
When there’s no Will, only someone who is due to inherit from the estate under Scottish Law can be appointed as Executor (technically ‘Executor-dative’). This is normally the person or people entitled to inherit the biggest share of the estate.
This normally means the person’s:
spouse or legal civil partner, if they have one.
child or children, if they do not have a surviving spouse or legal partner, or for some high value estates.
parents, siblings, or more distant relatives, if they are survived by neither a spouse/civil partner or any children. This depends on the specific family situation.
The rules are strict. Even if someone sees themselves as the ‘next of kin’, they cannot act as Executor unless they are legally entitled to inherit a share of the estate.
What if the person entitled can’t act?
Mental capacity
Sometimes the only person who’s entitled to be Executor is an adult who does not legally have ‘mental capacity’. Most commonly, this happens when someone with dementia or other cognitive issues is widowed.
In cases such as these, a ‘Power of Attorney’ on behalf of this person isn’t normally enough.
Usually, someone would need to have a ‘Guardianship Order’ (GO) for the incapacitated person that includes specific powers to deal with legal matters, including Confirmation. These might be referred to as ‘Commissary matters’. If the GO doesn’t contain the specific powers, the Guardian needs to apply to the Sheriff Court to have the existing powers changed.
There is no legal time limit around applying for Confirmation, this means that it can sometimes be easier to wait and deal with the both estates together after both spouses have died. This is only recommended if there are no creditors and no Inheritance Tax to pay.
Children under 16
If the only suitable person (or people) are under 16 then it must be their legal guardian who applies to be Executor. For children inheriting more than £20,000, the Accountant of Court must also be notified and be involved with managing their inheritance.
If you are still worried about issues around mental or legal capacity, we recommend seeking legal advice.
Family members can still support Executors
The person or people entitled to be Executor needs to sign the relevant forms and present their ID when needed. However, other people are allowed to support them by taking on practical tasks, like gathering paperwork, contacting banks, or using services like ours.
This is especially useful when the person who has to be the Executor is elderly, grieving, or otherwise overwhelmed by dealing with things alone.
How the estate’s value affects what you need to do
To help you decide how to move forward and what kind of help you need, it’s important to estimate the total value of the estate, – even roughly. This is because you might need a special type of insurance policy called a ‘Bond of Caution’ (pronounced ‘KAY-shun’).
A Bond of Caution is:
not needed if the estate value is £36,000 or less. The Sheriff Court should give you free help if you need to apply for Confirmation.
sometimes needed if the value is more than £36,000 and the person has a surviving spouse or legal civil partner. It depends on how much the spouse inherits under Scottish law.
always needed if the value is more than £36,000 and the person does not have a surviving spouse or legal civil partner.
If you need a Bond of Caution
We can help you if there is no Will
If the estate is worth less than £250,000 and you need a bond, we can help you get this as part of our ‘No Will’ package.
We might also be able to help if the value is more than £250,000 as long as the person has a surviving spouse. This will depend on your specific situation - get in touch for no-obligation guidance.
If the estate is worth more than £250,000 and the person does not have a surviving spouse or civil partner, you will definitely need a solicitor. This is because insurance companies will only issue bonds to solicitors in those cases.
What happens next?
The person or people entitled to be the Executor needs to apply to be formally appointed. This is a legal process through the Sheriff Court.