Executry law

Commissioner

Professor Gillian Black

Team Members

Julie Bain, Project Manager
Ailidh Robinson, Legal Assistant

Our project on executry law concerns the law relating to the administration of a deceased person’s property (their estate). This includes the process of confirmation; ingathering and distributing assets and the duties and obligations of executors. The current system is widely recognised as outdated, fragmented and difficult to navigate, with many of the core statutes dating from the 19th century or earlier. The project therefore aims to modernise executry law so that it is clearer, more efficient, and better suited to the needs of families, practitioners and the courts.

Background to the Project

A review of executry law was announced in the Commission’s Eleventh Programme of Law Reform, following responses received as part of our consultation exercise for new projects. In particular, the Law Society of Scotland provided a detailed account of the practical difficulties affecting this area. In addition, the consultation for the Eighth Programme of Law Reform, conducted in 2009, also generated responses which supported a review of executry law, demonstrating long-standing support for reform of this area.

Progress so far

We have carried out a preliminary scoping exercise to identify the key legal issues which would benefit from reform and modernisation. These are discussed further below. We have put in place an advisory group of legal experts to support our work on the project as it develops.

Throughout 2025 we held a series of scoping meetings with stakeholders. We will continue to engage with interested parties as the project evolves. The results of this engagement, together with our own detailed research, will inform a Discussion Paper which we intend to publish in late 2027. The Discussion Paper will seek views on any key issues and preliminary proposals that we might have. This public consultation will remain open for approximately three months.

When we have analysed responses to that Discussion Paper, and carried out any further research required, we expect to be in a position to provide the Scottish Government with a final Report detailing our recommendations and providing a draft Bill for their consideration. Although it is difficult to be certain about timescales, we would hope to publish this approximately two years after consultation closes.

Scopes

Our focus is on the executry process itself—the legal and practical steps required to administer an estate from the moment of death until final distribution. This includes:

The confirmation process: we will examine how executors obtain legal authority to administer the estate. This includes interactions with the sheriff courts, content of forms, and inconsistencies in current practice. We also intend to consider issues of property rights and ownership between death and confirmation. We will examine the simplified process for estates under £36,000 and assess whether the threshold and confirmation procedures remain appropriate for modern circumstances.

Appointment, role and regulation of executors: the project will review the appointment of executors, including problems around eligibility rules, competition for appointment, capacity issues, and personal liability. We will also consider whether bonds of caution should continue to be required for executors dative.

Ingathering and distributing estate assets: a key area for review is how executors identify, collect and distribute assets. This includes issues such as the operation of the six‑month rule for creditor claims, claims by surviving cohabitants, and handling insolvent estates.

Vitious intromission: the project will review the legal doctrine of vitious intromission and the associated risks and exposure to personal liability, with a view to improving clarity and protection for all parties.

Our aim is to work towards a modern, efficient and accessible executry system that reflects contemporary social realities and provides clarity for executors, beneficiaries and professionals alike.

Areas that are Not Within Scope

Certain important areas of law sit outside the scope of the project, even though they may impact on or complicate the administration of estates. These are:

Succession law: the project will not examine who is entitled to inherit, how estates should be distributed, the rules of intestacy, or the legal rights of spouses, civil partners or children. These matters have been considered in previous Scottish Law Commission work and some aspects are currently being considered by the Scottish Government.

Wills: capacity, validity, undue influence or fraud - while will disputes can delay or affect an executry, the project will not review the law on making or challenging wills. We may look at the executry process implications of will disputes, such as objections to confirmation, but not the substantive rules governing validity.

Family law: changes in family structure often lead to complex executries, but the project will not address family law issues such as cohabitation rights, divorce/dissolution, or financial provision.

Powers of attorney: we will not review the law governing the creation, use or oversight of powers of attorney. We may, however, consider limited procedural questions, such as how attorneys interact with executries when an executor loses capacity.

Prescription and limitation: while the relevant deadlines for claims are important when administering an estate we will not look at the overarching law in this area. However we may look at the time periods applicable to different types of claims within the context of the administration of estates.

Issues relating to funerals: we will not consider responsibility for the deceased’s body, funeral arrangements or broader regulatory aspects of funerals.

In 2027, the Commission will be consulting on its next programme of law reform. Where there is demand for a review of any areas that fall outwith the scope of the current project, we will consider these suggestions against the criteria for future projects, as part of the 12th Programme of Law Reform.

We are always keen to engage with stakeholders who might be affected by the subject matter of this project, and who wish to contribute.

For further information, enquiries, or if you would like to be added to our mailing list to be informed of future publications and events on this project, then please contact info@scotlawcom.gov.uk.