When someone dies in Scotland, most families assume the executor named in the will simply gets on with things. In practice, that isn’t always what happens. An executor might be unwell, living abroad, overwhelmed by grief, or quietly reluctant to take on the responsibility at all. Sometimes there’s more than one executor, and they can’t agree on anything. Occasionally the named executor has died before the person whose estate they were meant to administer, leaving no one obviously in charge.
None of this is unusual, and it doesn’t mean the estate is stuck forever. But it can feel that way to the family left waiting, especially when bills need paying, a house needs to be sold, or beneficiaries are asking when they’ll see anything. This article looks at what actually happens when an executor cannot act, won’t act, or simply disappears from the process – and what your options are if you’re the one trying to move things forward. If you’re dealing with any of this right now, Family Lawyers Glasgow’s team at Complete Clarity Solicitors is happy to talk it through with you; a short conversation often clears up more than people expect.
Why does this situation come up so often?
Being appointed an executor sounds like an honour, and in a way it is – the person who died trusted you to sort out their affairs. But the reality of the job surprises a lot of people. An executor is responsible for identifying everything in the estate, dealing with debts and tax, applying for confirmation, and eventually distributing what’s left to the beneficiaries. For a modest estate, that might take a few months. For anything more complicated, it can drag on for a year or more, and the executor carries legal responsibility the entire time.
It’s therefore fairly common for someone to accept the role out of a sense of duty and then realise, a few weeks in, that they don’t have the time, the confidence, or in some cases the mental capacity to manage the assets and money involved properly. Others were simply named in an old will and never actually agreed to take it on. In many cases, the family doesn’t discover there’s a problem until months have passed and nothing has moved.
What if there’s only one executor and they cannot act?
Where a will names one executor and that person cannot or will not act, the estate doesn’t automatically pass to anyone else. Someone has to formally step in. If the named executor is willing to renounce the role – that is, sign a formal document giving it up – a solicitor can usually help arrange for another suitable person, often a beneficiary or close family member, to be appointed instead.
If the executor is unable to renounce, perhaps because of illness or because they’ve lost mental capacity, the process is a little more involved. In that situation, an application may need to be made to the sheriff court for someone else to be appointed as executor-dative, which is the Scottish term for an executor appointed by the court rather than named in the will. It sounds formal, and it is, but it’s a well-trodden path and not something you’d be expected to navigate alone.
What happens when a named executor simply refuses to act?
This is one of the more frustrating scenarios for families. The person’s estate is sitting there, the named executor is alive and capable, but they just won’t engage – no renunciation, no action, nothing. Understandably, beneficiaries often assume there’s no way forward, but that isn’t quite right.
An executor who has been formally appointed can, after a period of inactivity, be compelled by court action to either get on with the administration of the estate or step aside. This isn’t usually anyone’s first choice, and most solicitors will try letters and gentle pressure before anything reaches that stage. Still, it’s worth knowing the option exists, because an estate cannot simply be left in limbo indefinitely while a reluctant executor ignores it.
What happens next if two or more executors cannot agree?
Where a will names two or more executors, they’re expected to act jointly. That works well when everyone gets on and shares the workload, but it can become genuinely difficult when relationships are strained, or when executors have very different ideas about how the estate should be handled – one wants to sell the house quickly, another wants to wait; one wants to distribute early, another is nervous about creditor claims still coming in.
When executors cannot agree, decisions can stall completely, because most steps in the administration of the estate need everyone’s consent. In our experience, a solicitor acting for the executors together can often unstick this simply by setting out, in plain terms, what needs to happen and by when. Where disagreement genuinely can’t be resolved, it is possible for one executor to seek removal or restriction of another’s authority through the sheriff court, though this tends to be a last resort rather than a first step.
What if you’re a sole beneficiary and there’s no executor able to act?
Being the sole beneficiary of an estate with no functioning executor is a particularly awkward position. You’re entitled to everything, but you may have no legal standing to touch a bank account or sell a property until someone holds a certificate of confirmation. The good news is that a sole beneficiary is often in a strong position to apply to be appointed executor themselves, particularly where the estate is straightforward, and there’s no dispute about who should inherit from the estate.
Where the deceased died without a valid will – intestate – different rules apply again, and the surviving spouse or civil partner, or other close relatives, may be able to apply to the court for appointment, taking into account legal rights and the rules of intestacy. This is one of those areas where it genuinely pays to get legal advice early, rather than guessing and hoping for the best.
Getting legal advice: how a solicitor can help you finalise the estate
Whatever the exact reason an executor cannot act – illness, reluctance, disagreement, or simply no one being named at all – a solicitor’s role is usually to find the quickest lawful route to getting someone properly appointed and the estate finalised. That might mean drafting a renunciation, preparing an application to the sheriff clerk, negotiating between executors who’ve fallen out, or simply explaining, in a phone call, that the situation isn’t as hopeless as it feels.
Solicitors can also deal with the less obvious parts of the process: working out whether inheritance tax is due on the estate, liaising with HMRC’s tax team, checking whether dealing with a small estate procedure applies rather than a full application for confirmation, and making sure any court paperwork lodged with the Scottish Courts and Tribunals Service is correct the first time. Trying to manage all of this without legal help is possible for very simple, low-value estates, but for anything involving property, disagreement, or a large estate, the costs to the estate of getting something wrong usually outweigh the cost of asking for help upfront. Citizens Advice and the Law Society of Scotland can point you toward general information, but for anything specific to your circumstances, speaking to a solicitor directly tends to save time in the long run.
If you’re a beneficiary, a reluctant executor, or a family member caught in the middle of a stalled estate, you don’t have to work out what happens next on your own. Family Lawyers Glasgow, part of Complete Clarity Solicitors, deals with exactly these situations regularly, and we’d rather have an early conversation with you than watch things drift for months. Give us a call or send an enquiry through our website – there’s no pressure, just honest advice about where you stand and what your options actually are.
