Professional Executor ducking responsibilities?

[Perlexed2022]

Hi all. I am a beneficiary in my mothers will. The executor a solicitor and their agent, his firm, are trying to settle the estate on 6 beneficiaries. Everything is agreed on the amounts and accounts etc. The process has been transparent. However in the document of division there is a clause that states the beneficiaries “do hereby agree to free and relieve the estate, the said Executors and their said Law Agents of all competent claims which may yet be made against the estate, the Executors or their said Law Agents but that not to exceed the benefit received by us from the estate”. My understanding is that after distribution the Executor is liable if any new creditors appear. This seems to absolve them. I wrote to the Executor and their reply is that this is a standard clause and is within Law Society of Scotland guidance and all solicitors have this clause or similar. I find this difficult as it means that a beneficiary cannot safely spend their inheritance, it also seems to circumvent the responsibility of an Executor, for which they are charging. Has anyone been through this before please, is this normal and correct or am I being led up the garden path?

[des8]

Condolences on the loss of your mother.

In England and Wales (and probably the same in Scotland) if a genuine creditor pops up after distribution of the estate he/she is entitled to recover what is due from the beneficiaries.
If the beneficiaries have changed their position (i.e. basically spent the legacy!) the creditor could pursue the executor for the money.
The executor however should have taken steps to protect themselves from this liability by placing a Deceased Estates notice in the Edinburgh Gazette as per the Confirmation of Executors Act 1823 for Scotland,

That is a standard clause you have been asked to sign.
In England & Wales your legacy should not be with held if you decline to sign, but again I don't know if the same applies in Scotland

[sederunt]

The inclusion of the clause is mostly a standard procedure by solicitors. You can access examples on the Law Society of Scotland website.

There is no set procedure for notifying creditors in Scotland where an estate is solvent. But the executor needs to take reasonable steps to ascertain debts.

The notice procedure mentioned by DES8 does not generally apply to executors, the 1823 Act imposes this only on 'executors creditors' and this is very uncommon.

[Perlexed2022]

The inclusion of the clause is mostly a standard procedure by solicitors. You can access examples on the Law Society of Scotland website.

There is no set procedure for notifying creditors in Scotland where an estate is solvent. But the executor needs to take reasonable steps to ascertain debts.

The notice procedure mentioned by DES8 does not generally apply to executors, the 1823 Act imposes this only on 'executors creditors' and this is very uncommon.

Thank you for your kind reply. They have said they will not settle the account unless I agree to sign the release with this clause in. Do you know what happens now or how I can force settlement in Scots Law without signing please?

[sederunt]

If no creditors have intimated a claim within 6 months, and the estate is being distributed in good faith, you are probably in a very strong position. I would be inclined to sign the form and accept the legacy.