Executry law

Commissioner

Professor Gillian Black

Team Members

Julie Bain, Project Manager
Julia Lopatka, Legal Assistant

Executry law concerns the ingathering, administration, and distribution of a deceased person’s property (their estate). This includes the need to seek confirmation (known as probate in England and Wales); the rights of beneficiaries; and the duties and obligations of executors – the people legally responsible for winding up the deceased’s estate. The law of executry is of fundamental importance. However, the current law is not fit for modern purpose. It is rooted primarily in legislation from the 19th and 20th centuries, and is also inaccessible, complex, and lacking in clarity — factors that may lead to uncertainty and potentially litigation and additional costs.

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.

The project may review the following areas:

• ownership and rights and duties in relation to property between death and confirmation being obtained;
• the legal position (in the increasing number of estates) where confirmation is not obtained;
• duties specific to executors such as in relation to legal rights;
• discharge of executors;
• the continued existence of executors;
• whether confirmation should continue to be a judicial process;
• rights against beneficiaries;
• the order of right to the office of executor where multiple possibilities exist;
• further exploration of bonds of caution and alternatives; and
• whether some or all of the executry process could be simplified through the use of online or simpler processes.

Contact

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 and enquiries, please contact info@scotlawcom.gov.uk.