Wilson & Fish is a specialist executry (probate) law firm. Our experienced solicitors serve clients across Scotland, advising on all executry matters. We advise clients at all stages of winding up an estate, including the appointment of executors.
There are two routes to your appointment as an executor. If you have been named as an executor in the will, the process of appointment will be relatively simple. If the deceased did not leave instructions as to his or her executors, it may be possible to be appointed in the Sheriff Court. These situations are considered in turn.
I have been named as Executor in the will
If you have been named in the deceased’s will as an executor, you are referred to as an ‘executor nominate’. The next step is to arrange for your local Sheriff Court to check your identity and confirm your appointment. Our lawyers can assist you in completing the relevant paperwork and will thereafter be on hand to advise you in carrying out your executry duties.
It should be noted that you are not legally obliged to take up the executry appointment if you are named in the will. Deciding whether to act as an executor is a deeply personal decision. At Wilson + Fish, you can be assured that our solicitors will provide impartial, detailed advice to assist you in determining the best course of action.
I have not been named as Executor in the will
An ‘executor dative’ is appointed by the relevant Sheriff Court where the deceased did not name an executor in their will, if they died intestate, or if the named executor does not wish to take up their appointment.
The Court will consider the following as potential executors:
- The deceased’s spouse or civil partner
- Those entitled to inherit all or part of the estate
- Next of kin
- The deceased’s creditors
- Those entitled to specific legacies
- The Procurator Fiscal
This is an order of priority: if more than one person wishes to be appointed, the Court can will normally choose the highest on this list. In some cases, the Court may exercise its discretion in appointing more than one executor, but this would be very unusual. In order to be appointed, you must make an application to the Sheriff Court (an ‘Initial Writ’). One of our solicitors can assist you in completing the court procedures.
If you have not been named as an executor, but others have been named and wish to take up their appointments, it can be difficult to challenge the deceased’s wishes. Similarly, it is not generally possible to challenge the legal order of priority outlined above. Our solicitors can, however, act on your behalf if you if you are concerned that the executor is acting improperly. In such a situation, we can take steps to protect the deceased’s assets and, if necessary, the executor can in some cases be removed.