Scottish estate – multiple executors, one executor abroad and possible intermeddling

Shadow18

I’m looking for advice from anyone familiar with Scottish succession/Confirmation law, ideally someone with professional experience in this area.

My partner's mother has recently died in Scotland. Her will names my partner and two siblings as executors. The will was made some years ago, when all three were living in the UK, but two now live outside the UK. The third executor still lives in Scotland.

There has been some disagreement about whether all three executors should remain involved.

One of the executors has engaged a solicitor independently. They have taken the position that it would be substantially quicker, simpler and cheaper for the Scottish executor to deal with the estate alone.

The concerns being raised are essentially:

* That having multiple executors generally creates substantially more administration and legal work, because the solicitor may have to deal with each executor and obtain documents/ID/signatures from each of them. The suggestion has been that legal fees could effectively increase with the number of executors — potentially doubling for two executors or tripling for three.

* That having one or more executors living outside the UK could create additional practical complications such as identity verification, wet-ink signatures, postage and delays.

One of the other executors has decided to renounce. My partner is considering what to do but would like to understand the position before signing anything.

My partner would prefer to remain an executor because the will specifically names all three children. They are not opposed to the Scottish executor taking the lead and doing the majority of the practical work. They simply want to understand what is actually required of them and what the consequences are of remaining an executor versus renouncing.

My partner has asked for the details of the solicitor who has been engaged so they can discuss the position before making a decision, but has instead been advised to obtain their own independent legal advice.

1. What does having multiple executors actually require in practice?

If three people are named as executors, what things, if any, do all of them actually have to do or sign?

For example:

* Banking paperwork and instructions to banks/financial institutions

* Solicitor documents

* The Confirmation application/documents

* Other estate paperwork

Can one executor take the lead and deal with the majority of the administration, with the other executor(s) only becoming involved where their signature, authority or consent is specifically required?

I’m particularly interested in what is legally required of all executors, rather than whether a particular solicitor might choose to copy all executors into correspondence.

2. Does having multiple executors inherently increase solicitor fees?

We have been told that having multiple executors can substantially increase the solicitor's work and therefore the legal fees — potentially doubling the fees with two executors or tripling them with three, because documents, correspondence, identity verification, signatures, etc. have to be dealt with separately for each executor.

Is that actually normal in Scottish estate administration?

Are solicitor fees generally based on the number of executors, or on the actual work required to administer the estate?

What sorts of things would genuinely create additional legal work/cost because there are multiple executors?

Also, if one executor renounces, does the solicitor/legal work required to prepare and process the renunciation itself normally add to the estate's legal costs, potentially offsetting some of the supposed saving?

3. What practical difference does having an executor abroad make?

One of the executors normally lives outside the UK.

How much practical inconvenience does this actually cause in a typical Scottish estate?

For example, are international postage, wet-ink signatures, identity verification, witnessing, etc. likely to cause significant delays, or are these generally fairly minor issues where the executor is responsive and able to provide anything required?

My partner is currently in Scotland for the funeral and could attend a solicitor/provide ID in person if necessary. They will also be returning to the UK in the near future.

So, in practice, does having an executor normally resident abroad tend to cause meaningful delays, or are any delays generally minor/inconsequential provided the executor is responsive and able to sign/return anything actually required?

4. Confirmation

Does every executor named in the will have to sign/be directly involved in the Confirmation application?

Or can one executor be the applicant/declarant while the other named executors remain executors but don't have to deal with all of the paperwork themselves?

5. Banks and other institutions

Does every executor generally need to sign instructions/forms to banks and other financial institutions?

Or can one executor deal with these matters on behalf of the estate?

If multiple signatures are required, is this generally only for particular documents, or is it normally required throughout the administration?

6. Possible intermeddling

This is something we are particularly unsure about.

Before fully understanding the implications, my partner has already done a few things following the death:

* contacted banks to notify them of the death;

* completed some banking paperwork;

* one very small account was closed and the money transferred to an account in my partner's name;

* dealt with the care provider/care home, including refunds; and

* a payment that was due to the deceased has been sent to my partner.

Could any of these things amount to intermeddling under Scots law?

If someone has intermeddled, does that mean they can no longer renounce/resign as executor?

If my partner has already done something that amounts to intermeddling, is there any mechanism by which they could still renounce, or would they then have to remain an executor?

7. What happens if the sole executor can't finish the estate?

One of the arguments for having the Scottish executor act alone is that it would be simpler.

But what would actually happen if that executor subsequently became seriously ill, incapacitated or died before the estate was fully administered?

Would one of the original named executors then be able to step in?

Would another executor have to be appointed?

Would this require an application to the Sheriff Court or further involvement from a solicitor?

In practical terms, would this create significant additional delay/cost, or is there a reasonably straightforward process for dealing with it?

I'm particularly interested in what actually happens in practice rather than just the technical terminology.

8. A recent real-world example

As a comparison, my mum dealt with two Scottish estates within the last couple of years where two executors were named. One executor did virtually all of the practical work, while the other lived elsewhere in the UK.

The second executor did not have to sign everything or deal directly with the solicitor/banks throughout.

There were only two occasions where the second executor needed to sign something:

* On one document, the solicitor emailed it to both executors. The second executor printed, signed and returned it to the first executor, who submitted it. They did not both need to sign the same physical sheet.

* On another document, the solicitor initially accepted a signed copy from the first executor, with the second executor's signature supplied separately. Copies were temporarily accepted while the original signatures were obtained.

For Confirmation, only the first executor was the declarant, although both remained named executors.

The second executor also generally did not need to sign the banking paperwork.

Obviously this was a different estate and a different solicitor, so I appreciate it may simply have been that solicitor's way of doing things rather than establishing what is universally required.

Does this sound broadly normal for a Scottish estate with multiple executors, or was that an unusual arrangement?

Overall

I appreciate that every estate and solicitor is different, and I’m not expecting anyone on a forum to give advice specific enough to replace a solicitor.

I’m really trying to separate actual Scottish legal requirements from matters of solicitor practice, convenience and assumptions.

There is no dispute about the will or the beneficiaries. My partner is also not refusing to let the Scottish executor take the lead or do the majority of the work. They simply want to understand what they are being asked to give up before signing a renunciation, particularly as the will names all three children as executors.

If multiple executors genuinely create substantially more work/cost, or if having an executor living abroad creates significant additional complications, that’s useful to know.

Likewise, if my partner has already intermeddled and therefore cannot simply renounce, we’d like to understand that before anything is signed.

I’d particularly appreciate responses from anyone with experience of Scottish estates/Confirmation, Scottish solicitors, or people who have actually dealt with multiple executors where one or more lived outside Scotland.

I’m deliberately keeping everyone anonymous. I’m not looking to criticise anyone involved — I’d simply like to establish what actually happens and what the practical consequences are before anyone signs anything.

Keep_pedalling

Your partner has certainly intermeddled, is she the one living in Scotland?

Shadow18

https://forums.moneysavingexpert.com/discussion/comment/82124190#Comment_82124190

No, we live abroad.

Would both the care home cheque being sent to us, as well as the bank account being closed and paid to us (even with an incredibly small balance) count as intermeddling?

(Sorry for the vagueness of some of the descriptions like that - trying to respect people's wish for privacy where possible)

RAS

The limit for small estates in Scotland is £36k.

Many of the estates with will that would be simple DIY in England or Wales require a bond of caution in Scotland in order to apply for probate.

There is only one provider who may consider private executors not using a solicitor (Lawsure). A good many folk here have obtained confirmation with the help of poster here. But be aware that there is a limit to what Lawsure will cover. Above that the executors need a solicitor to obtain the bond. In either case this has to be paid for before confirmation can be applied for.

It would help if you could state whether there is any property. And the value of the estate in total.

Also be aware that confirmation requires very precise and "archaic" language and processes. And that Sheriff's courts are not allowed to give any advice or even really to indicate what is wrong if they reject an application.

There are also strict ID rules requiring original documents.

So if your Scottish executor is getting twitchy about a non-Scottish co-executor doing stuff off their own bat without understanding Scottish law, it perhaps not surprising.

Shadow18

https://forums.moneysavingexpert.com/discussion/comment/82124588#Comment_82124588

Thanks for the reply.

Just to clear some things up:

• The estate is not considered small. Confirmation will be needed.
• No property involved.
• All executors are Scottish. There are varying levels of understanding of the process but no one would be considered an expert.
• No one is planning to do anything off their own bat. Everyone wants to use a lawyer.

buddy9

A small number of comments.

For a Scottish estate the term is ‘intromitting’ rather than ‘intermeddling’.

‘Renouncing’ would not be the term for declining. A nominated executor can ‘decline’ to be executor or can ‘resign’ if they have already acted. ‘Declinature’ or ‘resignation’ involves writing a simple note (letter/minute or deed). So no cost in itself if done proactively, other than the solicitor’s time to receive and process - obviously costlier if you leave it to a solicitor to arrange.

It is a personal decision of the executors whether to engage a solicitor for confirmation or to apply without a solicitor.

With a confirmation application there is signing only by a lead executor as declarant. 

If a single executor subsequently became incapax or died after the grant of confirmation, one of the original named executors who had declined would not be able to step in and use the original confirmation, but there should be scope to apply for an additional confirmation (confirmation ad non executa).

Shadow18

https://forums.moneysavingexpert.com/discussion/comment/82124797#Comment_82124797

Thanks, that's helpful. A few points I'd really appreciate some clarification on, if you don't mind:

• On intromitting: you've said someone who has already acted can resign rather than decline. Based on the things I've described (notifying banks, some banking paperwork, a very small account being closed/transferred, dealing with the care provider and receiving a payment due to the deceased), would you regard that as having already intromitted? Or is there still scope to decline/resign? We've had some preliminary legal input suggesting there may be an argument that these were only very early-stage actions and could still be dealt with without preventing the person from stepping aside, provided everything can be accounted for and handed over. Obviously we'd need to clarify the specific circumstances with the solicitor if we're able to speak with them.

• On the sole executor subsequently becoming incapax or dying: Is that a relatively straightforward process for one of those who had declined/resigned to get reinstated, or can it be a significant/tricky application with substantial delay/cost? In particular, if an original named executor had declined/resigned, can they then become involved through that process, or would someone else have to be appointed? Would it potentially then go to the wife of the executor who had become unable to act?

• On multiple executors and costs, we've also had some preliminary legal input which was quite reassuring. We were told the costs certainly wouldn't simply double or triple because there were two or three executors. There might be a little additional work here and there, but potentially very little or even nothing, depending on what is actually required. It also wouldn't mean duplicating all the paperwork — anything requiring the overseas executor's signature could simply be packaged together, sent to them, signed and returned to the Scottish-based executor, who could then deal with it. This was described as a fairly straightforward process. Does that broadly accord with your understanding?

• Related to that, is there a legal requirement for all executors to sign things such as post-Confirmation bank withdrawal/closure forms, or is that generally down to the particular bank/solicitor's process? We've heard that there may be a some bank withdrawal forms that all executors would need to sign in this estate, whereas a recent Scottish estate my family dealt with was handled differently — the solicitor dealt with the banks and neither executor had to sign those forms or only one. I'm wondering whether that's simply different solicitors/institutions taking different approaches, or whether there's a legal distinction I'm missing.

The overseas point is reassuring too — the legal input we've had is that they've dealt with overseas executors before without problems or complications, generally sending everything together for wet signatures and return.

Thanks again. I'm mainly trying to distinguish what is actually required by Scots law from what is simply the particular solicitor/bank's preferred process.

buddy9

• On intromitting: you've said someone who has already acted can resign ………..

There is no prevention of the person stepping aside. Whether by declination or resignation. 

• On the sole executor subsequently becoming incapax or dying: ……..

Anything involving a solicitor will cost money and cost can vary between practices. But it is just another type of confirmation application. In such a scenario I think the declining executors could be appointed.

• On multiple executors and costs, we've also had some preliminary legal input which was quite reassuring ………….

This broadly agrees with my view particularly where the estate is straightforward and there are no ‘timebound’ documents.

• Related to that, is there a legal requirement for all executors to sign things such as post-Confirmation bank withdrawal/closure forms, or is 

Probably down to individual practice of organisations. I note no house in the estate so no requirement there. If IHT return required, dual signature needed.

Shadow18

https://forums.moneysavingexpert.com/discussion/comment/82125250#Comment_82125250

Sorry, I just wanted to respond to say thank you for this. All very helpful.