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An executor-dative is appointed by the Sheriff Court to administer an intestate Scottish estate. The nearest relative applies to the court, usually provides a cautioner (financial guarantor), and then applies for confirmation from the Sheriff Clerk. The process is more complex than for an executor-nominate but follows a well-established procedure.
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In Scottish succession law, there are two types of executor:
A person named as executor in a valid will. Their authority flows from the will itself, though confirmation from the Sheriff Clerk is still required before they can formally deal with estate assets. See our guide on what confirmation is in Scotland.
A person appointed by the Sheriff Court where there is no will, no surviving executor-nominate, or where the will does not name an executor. Their authority comes from the court order (the "dative"), not from any will.
The term "dative" comes from the Latin meaning "given" — the authority is given by the court rather than arising automatically from a testamentary document. This mirrors the English concept of Letters of Administration, but the Scottish procedure differs in important respects, particularly the cautionary obligation.
The priority order for applying as executor-dative is set out in the Executors (Scotland) Act 1900. The court generally follows this hierarchy:
The hierarchy for appointment broadly mirrors the Scottish intestacy rules under the Succession (Scotland) Act 1964, though the court retains discretion. If multiple people of equal priority wish to act, they may apply jointly.
Where no relative can be found or is willing to act, the court may appoint a solicitor or other professional as executor-dative. The Crown (through the King's and Lord Treasurer's Remembrancer) may also administer the estate in cases of bona vacantia — where no heir can be identified.
One of the most significant differences between executor-nominate and executor-dative is the cautionary obligation. An executor-dative is usually required to find a cautioner before the court will grant the dative.
A cautioner is a guarantor — typically an insurance company — that undertakes to compensate the estate and its creditors if the executor-dative fails to administer the estate properly. The cautioner effectively insures the executor's performance of their duties.
The cost of caution depends on the value of the estate and is charged as a premium by the insurance company. For an estate worth £100,000, a caution premium typically costs in the range of £100–£300. The premium is an estate expense and may be paid from estate funds.
In some circumstances the court may dispense with caution — for example, where the sole beneficiary is also the sole creditor, or in very small estates. Seek advice from a Scottish solicitor if you believe caution should be dispensed with.
Practical tip: obtaining caution
Caution is typically arranged through a specialist insurance broker or through a solicitor. The two main providers of executry bonds in Scotland are Zurich Insurance and Aviva. Your solicitor will normally arrange this as part of the executry process.
Confirm that the deceased died without a valid will (or that no executor-nominate is able or willing to act). Obtain the original death certificate — you will need several certified copies for the application and for dealing with banks and other institutions. See our guide on registering a death in Scotland.
Before applying to court, you need to prepare an inventory of the estate — listing all assets with their values at the date of death. This includes:
You also need to identify the debts of the estate — mortgage, credit cards, utility bills, funeral expenses — as these are deducted from the gross estate to arrive at the net estate value for inheritance tax purposes and for the intestacy distribution.
Inheritance tax applies equally in Scotland as in the rest of the UK. If the estate exceeds the nil-rate band (currently £325,000, plus any available residence nil-rate band and any transferred threshold from a deceased spouse), IHT must be paid before confirmation can be granted. See our dedicated guides on IHT in Scotland and the UK inheritance tax guide for 2026–27.
Arrange an executry bond (caution) from an insurance company or through a solicitor. The bond amount is usually set at the gross value of the estate. You will need to provide the insurance company with details of the estate to obtain the premium.
Apply to the Sheriff Court in the sheriffdom where the deceased was domiciled (had their permanent home) at the date of death. The application for a dative is made by petition to the Sheriff. You will need to provide:
Once the Sheriff grants the dative, you are authorised to proceed with the confirmation application. The Sheriff Clerk handles the administrative side; the Sheriff is the judge who formally grants the appointment.
With the dative granted, apply to the Sheriff Clerk for confirmation. The confirmation application is the same process as for an executor-nominate — you submit an inventory (C1 form) and pay the confirmation fee. See our detailed guide on how to apply for confirmation in Scotland.
If the estate is small — currently under £36,000 — a simplified procedure applies and the full confirmation process may not be required. See our guide on the small estate procedure.
Once confirmation is granted, the executor-dative administers and distributes the estate under the Scottish intestacy rules — not the English rules. The distribution operates in three layers:
For a full explanation of each layer, see our guide on intestacy rules in Scotland.
An executor-dative has the same duties as an executor-nominate once confirmation is granted:
An executor-dative can be personally liable for losses to the estate if they act negligently, distribute assets to the wrong people, or fail to pay estate debts before distributing to beneficiaries. The cautionary bond exists precisely to cover such losses if the executor-dative fails to meet their obligations.
The executor-dative procedure is more complex than the confirmation process for an executor-nominate and, for most people, professional legal assistance is recommended — particularly for:
For simple, small estates, it may be possible to proceed without a solicitor, but it is always worth taking at least one hour of legal advice to understand the process before proceeding. The Law Society of Scotland maintains a directory of solicitors who specialise in executry work.
Farra helps executors across the UK navigate estate administration — including Scottish estates administered by executor-dative.
Confirmation is Scotland's legal equivalent of probate, granted by the Sheriff Clerk of the local Sheriff Court. Executor-nominate, executor-dative, and Scottish succession law explained.
Step-by-step guide to applying for confirmation in Scotland: the C1 inventory form, IHT reporting, Sheriff Clerk fees, and how long the process takes. Scottish estate administration 2026.
Not all Scottish estates require confirmation. Learn the threshold, which assets can be transferred without confirmation, and when the small estate procedure applies. 2026 guide.
How to notify banks after a death in Scotland: freezing accounts, using the Death Notification Service, and what confirmation is needed to release funds. Scottish estate guide 2026.
Scottish intestacy operates through prior rights (home, furniture, financial provision), legal rights (legitim for children), and the free estate. How Scottish intestacy differs from English rules.
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