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Appointment of Executor-Creditor

29th August 2016

Our Asset Recovery team act for a number of high street lenders in connection with repossession proceedings where their borrowers have defaulted on secured loans (mortgages).

We are frequently instructed to act for our lender clients in cases where the original borrower has died. In most instances, this does not pose any issues as the deceased borrower left a Will appointing Executors or alternatively a family member is appointed as Executor in the Sheriff Court if the deceased borrower did not leave a Will.

There are however cases in which the deceased borrower did leave a Will but the appointed Executors refuse to take up office. There are also situations where the deceased borrower did not leave a Will and no family members are willing to be appointed as Executor in the Sheriff Court.

Such cases can potentially cause a problem for our lender clients as there needs to be an appointed Executor on whom they can serve the necessary “Calling Up Notice” so that repossession proceedings can be formally initiated.

One lesser-known solution is to have our client appointed in the Sheriff Court as Executor-Creditor. This can be done where a person dies leaving a debt and, provided no Executors have taken up office or have been otherwise appointed, the person or company to whom the debt is owed (the creditor) can make an application to the Sheriff Court to have themselves appointed as Executor. Once the creditor has been appointed Executor in the Sheriff Court they are then able to serve the Calling Up Notice (as creditor) on themselves (as Executor) and matters can then progress in the usual way.

For further information, please contact Alan Thomson.

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