What happens if there is no will? - If there is no will, it may be necessary to apply to the Sheriff Clerk's office to appoint an executor, known as the "executor-dative" (normally the surviving spouse, or next-of-kin over the age of 16 years).
- There is no limit to the number of relatives who can apply for appointment (although normally only one appointment is made).
- In the event that the surviving spouse inherits the whole estate he/she is entitled to be appointed sole executor. However, if he/she does not wish to apply, one or more of the deceased's children may be appointed instead (providing a letter from the surviving spouse declining to apply is produced), although this varies depending on ruling of the Sheriff Court.
- In some cases, courts will allow one of the children to apply only if the surviving spouse:
- is incapable of acting as an executor (based on medical evidence).
- renounces any entitlement to the estate.
- In the event that the surviving spouse and child(ren) share the estate, any or all of them can apply to be appointed as an executor.
- The application is made by petition and requires the same information as that required where there is a will.
- A fee of £11 is required to appoint an executor by petition.
- As there is no printed form available, a solicitor will need to be instructed to prepare the required documentation for the court to appoint the executor-dative. A fee will be charged by the solicitor for this service.
- Once the appointment has been granted, the executor-dative can apply for Confirmation, using Form C1.
- The proceedings in the issue of Confirmation remain the same as that required where there is a will, but there may be a need to obtain a guarantor's agreement ("bond of caution") from an individual or from an insurance company to:
- confirm that the executor dative will carry out his/ her duties correctly.
- insure against losses in handling the estate.
- A fee will be charged by the company to provide the bond of caution. In addition, it will be necessary to provide:
- proof of identity.
- proof of their relationship with the deceased.
- The executor-dative is required to deal with the estate in accordance with the "Rules of Intestacy" (which include rules for dividing the estate among the surviving family/relatives).
- The Sheriff Clerk will advise on any procedure required.
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