Appointment of executor ad non executa - Scotland

Ptlsttch

Hi everyone. I just had a few questions, maybe someone would know regarding issues of executors in Scotland.

My father recently passed away and had no will. I was able to do the petition and my mother (as his spouse) was appointed his executor dative. I’m just waiting to get some info from the conveyancing solicitors regarding his home, in case there are any securities and then the confirmation should be no problem.

The main issue is that my father was the executor nominate of his mother who passed away in 2016. I am fairly certain confirmation was obtained (just cant find the confirmation paperwork) but I’d be able to contact the Sheriff Court to get that. The estate was not fully distributed. Eg there is a house remaining that hasn’t been legally transferred. My mother gave money to my aunt to “buy her out” but this wasn’t formalised. The estate was below the threshold for IHT and the money for “buy out” would not result in CGT for my aunt. I have no idea why my father didn’t finalise it all.

My father was the only executor nominate of his mother and the beneficiaries were my mother (the daughter in law of my grandmother) and my aunt (the daughter of my grandmother). There were no other children or beneficiaries of the will.

I understand that someone would need to be appointed executor ad non executa of my grandmother’s estate to complete the distribution of assets. I just have a few questions about this. I have had a look online and through some of the legislation but it’s a little confusing. I don’t have access to a Currie’s either.

Who is entitled to be appointed executor ad non executa? Is it the representative of the deceased executor? In this case, would my mother, as the executor dative of my father, be entitled to be appointed the executor ad non executa of my grandmother? Or would some other hierarchy be appropriate? Eg my mother or my aunt as the beneficiaries. Or my aunt as the closest living blood relative.

With regards to the appointment of executor ad non executa, is it just the X-1 form that needs to be submitted along with the other appropriate documents? Or would a petition also be required to the Sheriff Court first?

And would a bond of caution be required in these circumstances?

Many thanks for any assistance.

buddy9

The first step is to ensure that the house is listed in GM’s inventory and that the inventory description is appropriate, and that the land register title is in GM’s name.

Confirmation was obtained for your grandmother’s estate. Your father was the sole executor nominate. The estate was not fully administered - there is a house that hasn’t been transferred - and the executor (your father) is now deceased.

Yes, one option is for someone to be appointed executor ad non executa to complete the administration, provided that the house was listed in the original inventory and is still in the bonis of your grandmother.

If there was a substitute executor mentioned in GM’s will then that person can apply ‘ad non executa’ in a nominate capacity. Failing which mother and aunt (as beneficiaries) can apply ‘ad non executa’ in a nominate capacity using section 3 of the Executors (Scotland) Act 1900. The benefit of a nominate application is that no dative petition is necessary and Caution should not be necessary.

An ad non executa inventory (in a nominate capacity), is by X-1 form that needs to be submitted along with the other appropriate documents.

An alternative option, (depending on the progress of the Confirmation application for your father’s estate) is to consider the house as a lapsed trust and include it as trust property in an annexe appended to father’s inventory.

Ptlsttch

That's great. Thanks very much for your reply and taking the time to do so. It provided much clarity. 

And this is a very good point, regarding whether the property is in my grandmother's name. I'm pretty sure it was in the confirmation but will go to the Sheriff Court to try and obtain a copy of the confirmation.

As my father was also his father's (my grandfather's) executor nominate, I'm not so certain that this would have been transferred into and registered in my grandmother's sole name. And also the discharge registered. It is documented in his confirmation from 1990 that there is no survivorship clause. 
I have filled out a request form at the Land Registry.

My grandfather's will left everything to his wife (my grandmother). If the property had not be transferred into my grandmother's sole ownership, my grandfather's estate has not fully been administered also. Is this correct?

And would an executor ad non executa be required for this estate also? 
If this is so, who could be appointed ad non executa for my grandfather's estate? There are no other beneficiaries apart from my grandmother who is deceased. Would my mother be entitled as the executor's representative (his executor dative)? Or would my aunt be required to petition as a dative as his child and closest blood relative?

Many thanks for your help again. 

buddy9

In terms of my above post, appending a note to the inventory is an easier option than the ad non executa route - if you have not yet submitted the C1.