If there is no Will, or the nominated executor is unwilling or unable to accept office, or the testator was predeceased by the nominated executor then an application should be made to the Sheriff Court for the appointment of an executor, known as an executor-dative. This must be applied for in the following order of priority:
- Anyone who is entitled to inherit all or part of the estate
- Next of kin (nearest collateral relation)
- The creditors
- Anyone entitled to a legacy from the estate, i.e. a ‘specific legatee'
- The procurator fiscal
If the deceased did not make a valid Will, the order of priority remains the same, except that the next of kin, or a surviving spouse or civil partner would have preference.
The executor-dative must obtain a ‘bond of caution' from an insurance company. This is a guarantee made by the insurance company that the executor will distribute the estate in accordance with the rules of intestacy. It must be lodged with the inventory form C1 and relative form C5 with the Sheriff Court. If the surviving spouse's or civil partner's prior rights exhaust the estate, or there are no surviving issue (children or descendants of predeceasing children) then a bond of caution is not required (see ‘Prior rights' below).
After the funeral expenses, debts and liabilities have been paid, The Succession (Scotland) Act 1964 determines the distribution of an estate in the event of intestacy or partial intestacy.
There are three categories:
1. Prior rights - a surviving spouse or civil partner has a right to:
- The deceased's dwelling house (or a share) up to a value of £300,000
- A share of the furniture, furnishings etc up to a value of £24,000
- Cash up to a value of £75,000, if there are no surviving issue (children or descendants of predeceasing children), or £42,000 if the deceased was survived by issue
2. Legal rights
If the estate has not been exhausted by the satisfaction of the surviving spouse's or civil partner's prior rights then they are also entitled to claim legal rights in the estate. Legal rights only apply to the net moveable estate (money, investments and possessions) and do not extend to the heritable property (land or buildings).
A surviving spouse or civil partner can claim a one half share of the net moveable estate if there is no surviving issue (children or descendants of predeceasing children); but only a one third share if there is surviving issue. Likewise, the surviving issue can claim a one half share of the net moveable estate between them, if there is no surviving spouse or civil partner; or a one third share if there is a surviving spouse or civil partner. The surviving issue's share is known as legitim.
3. The free estate
This is the remainder of the estate after the funeral expenses, debts and prior and legal rights have been settled. The order of those entitled is set out in detail in the Succession (Scotland Act) 1964.