Our Policies

The King’s and Lord Treasurer’s Remembrancer (“KLTR”) is the Crown’s representative in Scotland who deals with ownerless property, known as “bona vacantia”.

The KLTR’s role is based on the common law principle that ownerless property may be dealt with by the Crown. If an asset becomes bona vacantia, the Crown can choose to deal with it if it wishes to - but it is not obliged to. The Crown’s right to bona vacantia is a right peculiar to the Crown and differs from a conventional right of ownership.

The KLTR has a wide discretion to deal with bona vacantia. Where the Crown disclaims an asset, a copy of the notice is published in the Gazette and, in the case of Companies, the original will be sent to Companies House. The effect of a disclaimer is to remove the Crown interest.

Property, cash and any other assets owned by a company when it is dissolved automatically vest in the Crown. This is because the law says this happens. You can find the main provisions of this law in the Companies Act 2006.

Continuing liabilities of a company do not pass to the Crown on dissolution.

Jurisdiction and its importance in bona vacantia

Who may deal with a dissolved company’s assets depends on:

• the last registered office address;
• where the asset is situated.

If the company’s last registered office and the asset are both in Scotland, the matter will be dealt with by the KLTR.

If the company’s last registered office and the asset are both in England or Wales, but not in the Duchies of Lancaster or Cornwall, the matter will be dealt with by the Treasury Solicitor in England.

If the company’s last registered office and the asset are both in Northern Ireland, the matter will be dealt with by the Crown Solicitor’s Office in Northern Ireland.

If the company’s last registered office and the asset are both in the Duchies of Cornwall or Lancaster, the matter will be dealt with by the Duchies’ solicitors, Messrs Farrer & Co

Farrer & Co.

66 Lincolns Inn Fields

London WC2A 3LH

The Duchy of Cornwall comprises the County of Cornwall. The Duchy of Lancaster comprises the county of Lancashire, most of Merseyside (except the Wirral peninsula) and parts of the counties of Greater Manchester, Cheshire and Cumbria. Further details as to the precise boundaries of the Duchy can be obtained from the Duchy Office.

Duchy Office

1 Lancaster Place

Strand

London WC2E 7ED

Tel: 020 7836 8277

If the last registered office and the asset are in different jurisdictions, the location of the last registered office will usually determine who deals with the asset. In the case of land, jurisdiction will be determined by the country in which land is situated. In Scotland, all land falling as bona vacantia normally falls within the jurisdiction of the KLTR, regardless of where the registered office is situated.

The KLTR does not deal with foreign assets but may deal with assets in Scotland which are owned by a foreign company.

Restoring a company

It may be possible to restore a company up to 6 years after the dissolution date. If this happens, the company comes “back to life”, and assets vesting in the Crown as bona vacantia belong to the company again. However, if the Crown has disposed of the asset while the company has been dissolved, the company will not be entitled to the asset back. However, we will pay the company whatever consideration we received from the sale (less any costs we had in dealing with the asset).

Petitions for the restoration of a company to the Register of Companies served on the Lord Advocate should be passed to the KLTR Office.  The KLTR would not normally expect to oppose a petition for restoration on principle but will seek payment of any expenses incurred in connection with the disposal of the company’s property.  The KLTR will require a written undertaking to be provided for payment of these expenses, failing which, the KLTR will oppose the petition.

Notifying the KLTR about company assets

You do not require to be a former director or shareholder of a company: anyone can let us know about company assets which may have fallen to the Crown.

When a company dissolves, its remaining funds fall to the Crown as bona vacantia. The KLTR does not operate a policy of making payments of dissolved company funds to those formerly connected with the company. This is without prejudice to the KLTR’s general discretion in dealing with bona vacantia. 

If you are a former director, shareholder, liquidator or other person connected to a dissolved company, and you want to recover monies lost in error after a company has dissolved, then you must consider the possibility of restoring the company using the process prescribed in the Companies Act 2006. 

It is not the duty of the KLTR to fix past mistakes or negligence in company administration. It is for those responsible for a company’s assets to distribute monies before it is dissolved. Bona vacantia can be avoided by ensuring property is distributed before a company is dissolved. 

Where a former company cannot be restored due to elapse of time, those with responsibility will already have had 6 years in which to restore the company through the statutory mechanisms in the Companies Act 2006.

When a company is dissolved, any funds in its bank account fall to the Crown. Where the company is registered in Scotland, the bank should immediately freeze the company bank account and send the contents to the KLTR.

If we discover any such bank account which is apparently still operating, we will ask the bank to remit the balance to us. We may ask the bank to account for its dealings with the account.

Similarly, any other funds which are held for a dissolved company should be remitted to the KLTR with a letter setting out the company’s name, registration number, date of the dissolution, confirmation as to who held the funds and information as to why the funds were held. Details of any payments out of the funds after dissolution should also be provided. Again, we may ask the fund holder to account for any dealings with the fund.

Where heritable property is referred to us, the first point we will seek to establish is whether there is a plausible Crown bona vacantia interest. To do this, we will ask to see copies of the following:

• the up-to-date title sheet/title deeds disclosing the registered proprietor of the subjects and any existing standard securities, etc.;
• a Legal Report in relation to the property (this is a type of conveyancing search report);
• a clear and accurate plan showing the extent of the property (as a guide, we would always consider a plan as clear and accurate if it met Registers of Scotland’s requirements for registration of the property in the Land Register);
• for complex titles, for example where the property comprises the residue of a larger area that has been the subject of a number of earlier partial disposals, an explanation of how those titles fit together with a composite or overlay plan to illustrate that;
• in the case of property last-owned by a dissolved company, details of the company’s registration number, its last registered office and the date it was dissolved. You should be able to obtain this from Companies House.

Ownerless Property Transfer Scheme (OPTS)

For heritable property referred to the KLTR after the launch of the OPTS, where a Crown interest is established, we will assess the property’s suitability for referral to public bodies, local authorities and eligible community bodies under the OPTS.

OPTS introduces process and policy factors to consider that are not repeated here. For further information about OPTS, please see our separate guidance published on our website.  

Valuation and Property Advice

We are guided by professional valuers on the valuation of property and related advice. Ordinarily, a valuation of eligible property would only be instructed once an interested party has agreed in writing to reimburse the KLTR for the valuation fee. The costs are payable whether or not a sale or transfer progresses.  In order to manage costs recovery, we will only release the valuation once the KLTR’s costs have been met.

Where heritable property is disposed of by competitive bid, it is normally a condition that the successful purchaser will be liable for the valuation fee. In the event of competitive bids, the KLTR will usually instruct a private firm of solicitors to act as the KLTR’s agent.

Title

It is for those making the approach and their professional advisers to satisfy themselves as to title.  That will therefore be reflected in the warrandice granted on a sale of any such property by the KLTR, which will be limited to simple warrandice. This is  a commitment that the KLTR (as transferor) will not in future voluntarily take certain actions to prejudice the purchaser’s rights to the property.

“Clawback”

In cases where the KLTR considers it appropriate, we may require the purchaser to enter into a contract (often referred to as a “clawback arrangement”) with the KLTR to protect the public purse against a future uplift in value of property transferred by the KLTR. The KLTR will take advice from our external advisers as to what terms would be appropriate in a particular case. 

Reservation of the Crown’s position

Please note that the KLTR always reserves the right not to proceed with a proposed disposal and may take other actions. For example, the KLTR may consider that an alternative transfer method provides a better outcome, or that a disclaimer of the Crown’s interest in a property is appropriate.

The KLTR recognises that land which appears to have a history of being, either formally or informally, set aside for the amenity benefit of a neighbouring property or properties may be sensitive. For example, once a building developer has completed development of a residential estate and sold off the individual plots, it may continue to own amenity land not conveyed to individual owners. 

The KLTR will have to consider whether it is appropriate to intervene to claim and deal with such an area. The KLTR may consider it appropriate simply to disclaim the Crown’s interest in land of this nature. 

To enable consideration to be brought to any approach regarding land of common amenity or benefit, it can be anticipated that the KLTR will require the interested party to-

• provide the items referred to in BV5 HERITABLE PROPERTY, to prove that title to the area has not already been transferred;
• where relevant, exhibit a copy of the title to a sample plot in the development from the building company to the first buyer of that plot and a copy of any Deed of Conditions affecting that plot; and
• establish whether the local authority maintains the area.

The Companies Act provides only that the assets of the dissolved company are to be treated as bona vacantia.  The Crown has no liability for a dissolved company’s debts.  However, the KLTR cannot give a clear title when there is an existing security.  It will normally be the responsibility of the interested party to negotiate the discharge of the security with the heritable creditor.

If there is inadequate value in the property against the amount due under the security then the KLTR may in any event decide to disclaim.

The KLTR will consider granting a Discharge of a Standard Security in very limited circumstances. These are where all three conditions are met:

• it is established, to the satisfaction of the KLTR, that the heritable creditor’s interest vests in the Crown as bona vacantia;
• the security is unrestricted, extant and potentially covers future obligations (i.e. it is an “all sums” style security); and
• the KLTR is satisfied that all obligations were met at the point the company dissolved.

The KLTR will therefore usually consider it more appropriate for parties to consider alternative remedies, for example, restoring the company or the mechanism in section 18(2)-(4) of the Conveyancing and Feudal Reform (Scotland) Act 1970. 

Sections 19(3) and 21(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970 provide for service of a Calling-up Notice or Notice of Default on the Lord Advocate.  Depending on circumstances, these Notices may be passed to the KLTR Office as agent for the Lord Advocate.   

Where a heritable creditor recovers funds in excess of sums due under the Security, and those funds are considered to form bona vacantia, then they must contact the KLTR in order to remit the excess funds.

Crofting and agricultural holdings concern specialised areas of law and the KLTR will normally expect to take specialised legal advice in order to consider options. 

Where appropriate, the KLTR will take advice from a qualified valuer as to the value of the landlord’s or tenant’s interest in a lease, taking account of any relevant terms of the lease.

Where the tenant under a commercial lease is a dissolved company, it is likely that the KLTR would expect to disclaim any such interest which is raised with the KLTR under section 1013 of the Companies Act 2006.  It will be for landlords and their advisers to consider the implications of that in terms of the 2006 Act. 

Please note that, as with any other type of approach about bona vacantia, the KLTR may ask that approaching parties contribute towards the KLTR’s costs associated with providing a disclaimer of a tenants’ interest as, otherwise, this cost must be met from public funds.

The KLTR does not manage or administer the prescriptive claim process that is provided under the Land Registration etc. (Scotland) Act 2012: that is a function of Registers of Scotland. 

However, the KLTR may be notified of a prescriptive claim over a property because it is believed that there is no proprietor and because no other person is able to take steps to complete title as proprietor.

Where the KLTR is notified as part of a prescriptive claimant process under the Land Registration etc. (Scotland) Act 2012, we normally seek to establish two points:

• That no one (other than the Crown) appears to have an interest in the property.

We want to see that applicants have made reasonable efforts to trace title and identify the last owner of the property in question.

In a case where it is suggested the Crown interest arises because no title to the subjects can be traced in the property registers, the KLTR will expect evidence of appropriate efforts to trace a title.  For example, evidence of investigations by appropriately qualified persons (such as professional title researchers or Registers of Scotland themselves) who have been provided with an appropriate budget to enable full and proper investigation into the title position to have been carried out.

If it does not appear that sufficient efforts have been made to trace title, or if it appears there is someone else on whom notification should be served, we may consider it appropriate to object when we receive the section 45 notification from Registers of Scotland.

• If (1) applies, whether it is plausible that the Crown may have acquired the interest in the property.

If it appears that, after a reasonable level of searching, there are no traceable owners or representatives, it may then be plausible the Crown has acquired interest in the property as bona vacantia. In that case, the KLTR will consider whether an alternative process is more appropriate to deal with the Crown’s interest.

Approaching the KLTR

The KLTR will expect to be approached in advance of any notification under section 43 of the 2012 Act with relevant titles, searches, background information and an explanation as to why the KLTR is being notified.

The KLTR usually has no prior knowledge of the subjects in question and those items are required in order for the KLTR to properly consider the matter. 

Objections by the KLTR to a prescriptive claim

An objection by the KLTR to an application by a prescriptive claimant is not intended as an act of possession or control by the KLTR. Any such objection is under reservation of all options of the KLTR (including the KLTR’s discretion to disclaim any property falling to the Crown as bona vacantia).

This policy sets out the general policy approach of KLTR towards approaches concerning a failure to distribute property of a company prior to its dissolution.

 It is not the duty of the KLTR to fix past mistakes or negligence in company administration. It is for the directors, shareholders and others responsible for a company’s assets to dispose of its property before it is dissolved. Bona vacantia can be avoided by ensuring assets or property are transferred or dealt with before a company is dissolved.

If you are a former director, shareholder, liquidator or other connected person and you want to recover an asset lost in error after a company has dissolved, then you must consider the possibility of restoring the company using the process prescribed in the Companies Act 2006.

You should not expect the KLTR to intervene to apply Crown rights in order to transfer the asset to you for free. There is no guarantee that the KLTR will intervene in relation to the property at all. For example, the KLTR may decide to sell it on the open market if that would achieve better value for the Crown or where he otherwise considered that appropriate. However, if the KLTR did agree to sell the asset to you, you should anticipate that this would be based on the assessed value of the property.

Please note that the KLTR does not provide legal advice. You should obtain your own legal advice about your options and what other remedies may be available to you.

Monies due to an individual or group of individuals (e.g. trustees) who cannot be traced may be treated as bona vacantia at common law. We will usually accept them if we are satisfied that sufficient efforts have been made to trace the true owners.

We will accept the following as bona vacantia at common law:

• a cash legacy or residue payment due to an individual under a Will, or a payment due under the Scots law of intestacy, if the entitled individual is known to exist and we are given evidence to satisfy us that they cannot be traced;
• miscellaneous client balances from solicitors or others.

Solicitors may wish to refer to the Law Society of Scotland’s Guidance for cash balances against “Rule B6: Accounts, Accounts Certificates, Professional Practice and Guarantee Fund” on their website.

When the funds are remitted, we will require the following information:

• name of client/beneficiary of funds and any information as to what the funds relate to;
• last known address of client/beneficiary of funds;
• details of the efforts made to trace the client/beneficiary of funds.

If you do not have this information and cannot obtain it, we will require a written explanation detailing the reasons. For instance, if all records have been destroyed, making it impossible to identify the client or beneficiary, include that in your explanation.

For detailed instructions on submitting funds held for an individual or group of individuals who cannot be traced or have abandoned their funds to the KLTR, please visit the 'Balances Held by Law Firms section on our website.

When asked to refund bona vacantia money due to an individual or trustees (see Section BV14 “CASH ASSETS OF INDIVIDUALS OR TRUSTEES”), we will:

• require proof of entitlement of the claimant to the funds, or their entitlement to have dealt with the property, as the case may be;
• where appropriate, require an indemnity* from (or on behalf of) the entitled party;
• deduct outlays and £50 for administration costs or, if the funds were raised through sale of heritable property on our instructions, deduct outlays and £650 for administration costs (unless administration costs for the sale of heritable property were recovered from the purchaser).

*NOTE:  It is our practice to refund bona vacantia money held to the person/organisation who forwarded the funds to us in the first instance.  However, if this is not possible and the funds are being refunded direct to an individual/trustee, we will require an indemnity in respect of the sum to be refunded.

No interest is paid on monies refunded.

No VAT is payable on the administration fees being deducted. 

Normally no payment will be made more than 10 years from the date of receipt of the funds by the KLTR.  Any claim received outwith that period will be considered according to circumstances.

The KLTR may deal with intellectual property previously owned by a dissolved company which now belongs to the Crown. The KLTR can sell bona vacantia intellectual property for its open market value and will not transfer bona vacantia intellectual property for less than the minimum consideration set out below plus costs.

KLTR normally outsources the consideration and valuation of any request regarding intellectual property to external agents, and you will need to agree to pay their fees before proceeding with any transaction. The sale price of a Trade mark, Patent or Artist’s Resale Right (where copyright still subsists) is £2000 or market value, whichever is higher. 

When you approach the KLTR, you do so on the basis that there is no guarantee that the KLTR will sell the intellectual property to you because the KLTR will always make an independent assessment of the correct manner of disposal and who to sell it to (if anyone).

The KLTR will not transfer intellectual property with any title guarantee or provide any representations or warranties in connection with it (either express or implied). This means that when the KLTR sells rights, no guarantee or assurance is given that the Crown has the legal right to sell them or provide any assurance about past disputes or other matters that might be relevant to a purchaser. You will have to deal with any subsequent disputes that may arise.

If an offer is made to sell intellectual property, it will not include any goodwill that may be associated with it.

The KLTR may deal with the disposal of shares previously owned by a dissolved company which are now bona vacantia.

The KLTR usually sells shares for market value or may disclaim the Crown’s interest.

The KLTR does not intervene to:

• transfer shares for no consideration;
• transfer shares with any title guarantee;
• assist with disputes that may arise from the transfer of shares;
• normally exercise any powers of a shareholder.

If you wish to approach the KLTR regarding shares, you must write to us and include:

• the name, company registration number and last registered office of the dissolved company that owns the shares. This can be obtained from Companies House;
• a copy of any share certificate;
• a copy of the share register of the issuing company showing that the dissolved company was registered as the holder of the shares;
• details of any dividends declared by the issuing company in the last 3 years;
• details of any dividends declared since the date the company was dissolved, which are now payable to the Crown as bona vacantia;
• a copy of the last 3 years audited accounts of the company;
• a copy of the articles of association of the issuing company.

The KLTR normally outsources the consideration and valuation of any request regarding shares to external agents, and you will need to agree to pay their fees before proceeding with any transaction.

We seek to manage and recover our costs where we consider it practicable and appropriate to do so, in order to help reduce the impact to public funds. During casework, outlays incurred by KLTR may be payable by 3^rd parties, including our external agents’ fees where instructed to act on KLTR’s behalf. We would inform you if this applied to your case.

The following administrative fees by KLTR may also be levied in transactions involving bona vacantia:

 Please see the OPTS Guidance for details about costs incurred in OPTS.

“Ultimus Haeres” is Latin for “ultimate heir”. It refers to the Crown’s right to a person’s estate where a person dies “intestate”, which refers to the situation where the person does not leave a will and has no spouse or civil partner or any other blood relative, or has no relatives who can be easily traced.

In those cases, the person’s estate (e.g. cash, shares, pension etc. and land or
buildings), is claimed for the Crown by the KLTR as “ultimus haeres” (last heir). The assets are gathered in by the KLTR Office, and the surplus after the deceased person's debts and the funeral account have been paid, fall to the Crown.

Heirs can appear later and, provided they prove the appropriate relationship, the net assets of the estate can be paid to them.

Reporting a death

Where there has been a death and there are apparently no spouse, civil partner or blood relatives, the death should be reported immediately to the National Ultimus Haeres Unit. The contact details for the National Ultimus Haeres Unit are as follows:

National Ultimus Haeres Unit
Procurator Fiscal Office
Cameronian House
3/5 Almada Street
Hamilton
ML3 0HG

Telephone number - 0300 020 4196
Email: NationalUltimusHaeresUnit@copfs.gov.uk

(See also UH 2 INITIAL INVESTIGATION OF ESTATE)

UH fees are as set out below.

Fees charged on completion of administration of Estate

We may instruct external agents to take forward the main estate administration on KLTR’s behalf. Where this applies (usually for estates estimated at over £10,000 in value) the associated professional fees will be deducted from the estate held and the KLTR will charge an administration fee of £300 (in cases where there is no heritable property included in the estate), or £500 (in cases where there is heritable property included in the estate).

Alternatively, where the main estate administration is dealt with by the KLTR’s officials, a fee of 10% of the estate held at the point of completion of administration of the estate will be charged subject to:

• a minimum fee of £300 (even if the estate is less than £3,000) and
• a maximum fee of £3,000 (in cases where there is no heritable property included in the estate), or £4,000 (in cases where there is heritable property
  included in the estate).

In circumstances where additional estate comes to our attention after the administration has been completed, or for estates that are materially more complex in nature, then an additional fee according to circumstances may be charged.

Fee for checking documents in support of a claim

A fee may be charged for checking the documents supporting a claim of the estate by a spouse, civil partner or a blood relative (see Section UH7 PAYMENT OF UH ESTATE below). Where it appears appropriate, the KLTR may instruct external suppliers to assist with verifying the claim by a potential successor. Where this applies, we will require that the associated incurred costs are met.

If a person dies intestate without known blood relatives or surviving spouse or civil partner the fact should be reported immediately to the National Ultimus Haeres Unit (“NUHU”) – see the contact details above and on our website www.kltr.gov.uk.

NUHU will investigate the deceased’s background and circumstances and collect for safe keeping appropriate documents, papers and valuables. If it appears to be a UH estate NUHU will report the details to us.

Friends, solicitors, local authorities, hospitals or care homes should not attempt to ingather the estate themselves.

NUHU will take particular note of the existence of a co-habitee who intends to make a claim under section 29 of the Family Law (Scotland) Act 2006 (see Section UH8 below)

An estate cannot be accepted as a UH estate if-

• there is a valid Will, even if the executor cannot be found;
• the estate is insolvent;
• there is a blood relative or spouse or civil partner with a known address.

When an estate is reported to us by NUHU we add details to our website (see
above under “Find An Estate” on our website).

We will not normally now commence our administration of an estate before 12 weeks have elapsed from the date the estate is reported to us by NUHU. That period is to allow a further opportunity for an entitled person to claim the estate before our administration commences. Any person who therefore considers that they can claim an estate are encouraged to intimate that to us without delay.

Once the administration of an estate has commenced, it will be administered to
conclusion (and the appropriate fee charged), even if a relative appears in the course of that work.

“Administration” means that all the known assets belonging to the deceased are
ingathered, and all known debts due by the deceased are paid from the estate. Debts will be paid when we are in possession of sufficient funds to enable us to do so. This can occasionally lead to a delay in payment if we are waiting for funds. Heritage is sold in accordance with Section UH5 below.

Dealing with a deceased’s personal belongings

The arrangements for the disposal of the deceased’s personal belongings are
made by NUHU.

NUHU will retain photographs and jewellery items for a period of 6 months from notification to NUHU of a death. NUHU will also store for 6 months mobile phones, tablets and laptops, after which they will be wiped before disposal either by sale or destruction. Depending on the value, all other property may be sold, distributed to local charity shops or otherwise disposed of.

In the case of jewellery, if no spouse, civil partner or blood relatives have been identified to NUHU during the 6 month period, NUHU will arrange for the jewellery to be disposed of under the direction of an auctioneer. Where such relatives are identified in the 6 month period, NUHU will hold onto jewellery and photographs for a further 6 months to allow the items to be claimed.

In all cases, any sums realised from the sale of individual items by NUHU will be credited to the estate. Unclaimed photographs will be scanned into digital format and the physical photographs will be destroyed. The digital copies will be passed to the KLTR office and will be held by them for 20 years.

Heritage will be advertised on the open market for sale cleared of the deceased’s belongings. It will also be included in the Asset Register of heritable property falling to the Crown on the KLTR’s website.

See above (UH Matters – Information on our website) for the information available on our website regarding UH estates which have not been claimed.

The KLTR will place an advert periodically in a newspaper to draw wider attention to the information which can be found regarding UH estates on the website.

Enquiries about Confirmation to a deceased’s estate should be directed to the Commissary Office at the Sheriff Court for the area where the deceased resided.

Normally no claims on UH estates will be accepted after the later of 20 years from the date of death or 2 years after completion of administration. Any claim received outside that period, including a claim in satisfaction of prior or legal rights (these are rights of the spouse, civil partner or children/descendants of the deceased), will be considered according to circumstances.

Subject to what follows, the KLTR will pay over the net estate held following
completion of administration to the party confirmed as executor (usually as
executor-dative unless a Will has subsequently been discovered).

The executor must provide us with personal identification in the form of passport/UK photographic driving licence (or equivalent), a recent (not more than three months old) utility bill/bank statement (or copies certified to be a true copy by a solicitor), the principal Confirmation document and (if applicable) a copy of the executed bond of caution.

In addition, documentary proof of the blood line to the deceased in the form of original (or copies certified to be a true copy by a solicitor) birth, marriage and death certificates and a family tree showing the executor’s relationship to the deceased will be required.

Where the net estate held by the KLTR is less than £2,000, as an alternative to confirmation being obtained, payment can be made to a claimant who could have been appointed executor-dative against an indemnity.

The supporting documents (other than a confirmation and copy bond of caution) referred to in the preceding paragraph are also required (ie regarding ID, documentary proof of the bloodline and a family tree).

No interest is paid on a UH estate. Funds are held in a Government Banking Service account which does not bear interest. The KLTR is not subject to the Law Society Rules on administration of executry estates.

If additional estate is subsequently received, the KLTR will normally expect the
executor-dative to obtain an eik and bond of caution in respect of the additional funds. Where the additional estate is less than £2,000 however, and this does not have tax implications, the KLTR may consider paying the additional estate to the executor-dative against a suitable indemnity. An additional fee may be deducted by the KLTR.

Section 29 of the Act gives a co-habitee the right on intestacy to apply to a court for financial provision from the deceased’s net estate within six months of the date of death.

If an estate has been passed to NUHU for investigation where there is a co-habitee who intends to make such an application, it is essential that the co-habitee advises NUHU of that intention in writing as soon as possible to prevent the disposal of property of the deceased which might be the subject of the application to the
court.

On receipt of the written notification, we will suspend further action pending either the order or interim order of the court, or the expiry of the prescribed time limit (six months from the date of death) if no such application has been made and intimated to us.

If an application to the court is successful, and we hold funds which are covered by the court’s order, they will be paid over on production of the court order.

The KLTR may consider applications for a discretionary payment from an estate on grounds of:

1. relationship;
2. services rendered to the deceased; or
3. the intention of the deceased regarding the disposal of his or her means and estate.

We will ask for independent and other evidence to support the request.

When considering a discretionary payment on grounds of relationship, the KLTR would want to be satisfied that there were benevolent grounds for considering a payment. Such grounds might arise out of hardship or unfairness in a particular matter raised with the KLTR. The KLTR would be looking for some form of social element to the relationship between the deceased and a claimant. That might, for example, arise where the claimant was a stepchild of the deceased intestate, or where a claimant had always been treated by the deceased as though they were the deceased’s child or part of their family. In the case of services rendered, evidence of the applicant’s contribution to the deceased’s quality of life will be required.

In the case of the deceased’s intention, applications for a discretionary payment fall into 2 broad categories:

• the deceased left some form of testamentary writing bequeathing all or
  part of his or her estate to certain parties which, for one reason or another,
  was not a valid testamentary writing;
• the deceased left no such testamentary writing but it is alleged that the deceased made oral statements of his or her intentions.

If the estate remains unclaimed, such a request will be considered two years after administration of the estate was completed.

If a discretionary payment is made, and a subsequent claim is received from an executor, the estate held by the KLTR is the sum held at the date of the claim by the executor.

Service of a Calling-up Notice or a Notice of Default on the Lord Advocate is made in accordance with sections 19(3) and 21(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970.

It will be for those acting for the creditor to consider how the 1970 Act requires those notices to be served and whether the mechanism of service on the Lord Advocate is available in a particular case.

These Notices are passed to the KLTR Office to be dealt with as agent for the Lord Advocate and we may request sight of a copy of the death certificate (because that very often discloses registration of the death by a relative). We recognise that ultimately it is a matter for the courts in any particular case as to whether a notice has been validly served for the purposes of the legislation.

Net funds recovered by the Creditor in excess of the sums due under the Security should, if agreed with us to be appropriate, be remitted to us (although they may require to be reported in the first instance to NUHU for investigation as to whether a UH estate might be in view).

Family members often decide to take no benefit from a deceased’s estate, in favour of another family member.

If the document declaring the family member’s intention has not been carefully prepared, and the legal effect of the document is to renounce rights of succession, those rights fall to the Crown.

In such circumstances, where the true intention of the renouncing party is clear and is vouched, the KLTR will provide a letter stating that the KLTR makes no claim on the estate with the intention that the share reverts to the free estate for distribution to the other claimants. A fee of £250 will be charged to cover consideration of the approach, and supporting papers, and the preparation of the letter.