Executor Duties in Scotland: Executor Nominate vs Executor Dative Explained

Being appointed executor in Scotland carries real legal weight. It is not a ceremonial role. The executor has personal financial liability for mistakes, and the standard of care required by Scots law is that of a reasonably diligent person managing their own affairs. That sets the bar higher than most people expect when they first accept the role.

Here is what Scottish executors are actually required to do — and the critical distinctions between the two types of executor recognised by Scots law.

Executor Nominate vs Executor Dative

Scots law recognises two distinct categories of executor, and which one you are affects your starting position, your paperwork, and your obligations.

Executor Nominate

An executor nominate is named in the deceased's Will. When you find the Will and your name is listed as executor (often referred to as "executor" or "executor and trustee"), you are an executor nominate. You do not need the court to appoint you — you already have the role. What you need is Confirmation from the Sheriff Court to prove your authority to third parties.

Executor nominates are generally not required to obtain a Bond of Caution. This is a significant practical advantage: it saves both time and the Bond of Caution insurance premium, which typically averages around £400 for intestate estates.

If there are multiple executors named in the Will and one of them cannot or will not act, the remaining named executors can usually proceed without them. If none of the named executors can act, the court can appoint an executor dative instead.

Executor Dative

An executor dative is appointed by the Sheriff Court when the deceased left no valid Will, or when the Will names no executor, or when all named executors have died or declined to act. To be appointed executor dative, a family member (or other entitled person) must petition the Sheriff Court.

The right to apply follows a strict statutory hierarchy:

1. Surviving spouse or civil partner
2. Children and remoter descendants
3. Parents
4. Brothers, sisters, and their descendants
5. Other relatives in descending order

The petition to the court costs £23. But the more significant consequence is the Bond of Caution requirement. Unlike executor nominates, executor datives must generally obtain a Bond of Caution before Confirmation will be granted — unless the estate qualifies as a Small Estate (gross moveable estate under £36,000) and the executor uses the Sheriff Clerk's free assistance service.

The Core Duties Every Scottish Executor Must Fulfil

Whether nominate or dative, the executor's legal responsibilities are the same once Confirmation is granted.

1. Locate and Secure the Estate

The executor's first practical task is identifying and protecting all assets. This means:

• Locating bank accounts, savings, investments, and pension policies
• Securing heritable property (the deceased's home) — notify the insurer immediately if the property is now empty, as vacancy conditions typically apply within 30-60 days
• Obtaining formal valuations for heritable property and valuable personal possessions
• Identifying any digital assets: cryptocurrency wallets, online bank accounts, investment platforms, and PayPal balances

For bank accounts, request date-of-death balances in writing, specifying that you need the balance including all interest accrued to the date of death. This specific figure is required for the C1 Confirmation form.

2. Register the Death and Obtain Certificates

Scotland requires death registration within eight days. You will need multiple extract death certificates. Order them at the point of registration — within 30 days of registration they cost £10 each; after 30 days the fee rises to £15.

Order at least six. Banks, pension providers, the Sheriff Court, and investment houses all want official copies, not photocopies.

3. Notify Agencies Using Tell Us Once

At the registration appointment, the registrar gives you a Tell Us Once reference number. This is valid for 28 days. Use it via the online portal (or by phone) to simultaneously notify the DWP, HMRC, DVLA, the Passport Office, and the local council. This stops state pension payments and prevents the ongoing distress of government mail arriving addressed to the deceased.

4. Apply for Confirmation

The executor compiles the inventory of the estate — every asset and liability valued at the date of death — and submits the C1 Confirmation form to the Sheriff Court. For taxable estates, HMRC must first receive and process the IHT400. For non-taxable estates, the C1 itself handles HMRC reporting.

Confirmation is the document that unlocks the estate. Without it, no bank will release funds, no title can be transferred, and no pension can be accessed.

5. Ingather the Estate

Once Confirmation is granted, the executor uses the certified Confirmation documents to:

• Demand release of bank and building society balances
• Transfer or sell investments and shareholdings
• Deal with the property — whether selling, transferring to beneficiaries, or administering a tenancy

6. Settle Debts in the Correct Order of Priority

Before distributing anything to beneficiaries, the executor must settle all debts. Scots law specifies the order of priority:

1. Privileged debts — funeral expenses come first
2. Preferred debts — including certain HMRC claims
3. Secured debts — mortgages and other secured loans
4. Ordinary unsecured debts — credit cards, utilities, personal loans

Never skip a category. Never pay one creditor while ignoring another at the same priority level. If the estate is insolvent (debts exceed assets), the executor should stop immediately and apply to the Accountant in Bankruptcy for sequestration of the estate.

7. Wait the Six-Month Creditor Period

This is the duty most executors underestimate. Scots law gives creditors six months from the date of death to submit claims against the estate. If the executor distributes the estate before six months have elapsed and a legitimate creditor surfaces afterwards, the executor is personally liable for that debt out of their own pocket.

Publish a deceased estates notice in The Gazette (the official public record) and ideally in a local newspaper. This demonstrates good faith and provides additional protection once the notice period has run.

8. Address Legal Rights Claims

If there is a surviving spouse or children, they have automatic Legal Rights under Scots law — a fractional share of the net moveable estate that cannot be removed by any Will. See our article on Prior Rights Scotland for the full calculation framework.

Each beneficiary must formally elect whether to claim Legal Rights or accept what the Will provides — they cannot take both. Record these elections in writing.

9. Distribute the Estate and Prepare Final Accounts

After all debts, taxes, and Legal Rights have been addressed, the executor distributes the remaining estate to the beneficiaries. The executor then prepares formal estate accounts showing every asset received, every payment made, and every distribution to beneficiaries. The beneficiaries sign a discharge, releasing the executor from further liability.

Personal Liability: What Executors Must Know

The executor is personally liable if they:

• Distribute the estate before the six-month creditor period expires
• Pay the wrong beneficiaries or in the wrong proportions
• Fail to pay IHT and it leads to penalties
• Transfer assets before Confirmation is granted
• Undervalue assets and pay less tax than is due
• Ignore Legal Rights claims

The executor's expenses — including the cost of professional advice, court fees, and reasonable travel — are reclaimed from the estate. Personal liability for mistakes is not covered by the estate.

Managing executor duties in Scotland involves navigating a strict legal sequence with real consequences for errors. The When Someone Dies in Scotland Estate Settlement Guide provides a chronological executor checklist, Form C1 guidance, and a six-month creditor tracking template to help you administer the estate without personal liability.

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