Closest equivalent rights and adaptation

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1. What are the main rights in rem arising from successions in your system?

In Scotland, when a person dies their property must be gathered in and distributed to any creditors and beneficiaries. An executor, acting as a representative for the deceased, is responsible for this. Executors can either be appointed by will (an executor-nominate) or by a court (an executor-dative) and must obtain confirmation to the estate before they can act.

The right to a legacy or bequest made in a will, or rights under intestacy, is said to vest when the beneficiaries acquire right at the time of the testator’s death. This right can be taken only against the executor of the estate, and the executor must ensure that any debts of the deceased are settled before distribution of the estate.

Once all of the deceased’s debts have been settled the executor will execute a transfer deed, known as a disposition, in favour of the relevant beneficiary. The disposition may then be submitted for registration in the Land Register. Registration in the Land Register will complete the title of the beneficiary and make them owner of the property. It is also possible for a beneficiary to instruct an executor to sell the property without the beneficiary ever taking ownership. The beneficiary would, in turn, receive the net sale price.

Ownership of heritable estate is transferred only by registration in the Land Register as per Part 3 of the Land Registration etc. (Scotland) Act 2012.

2. What would the role of your Land Register or registrars be in order to put in practice the principle of adaptation? What contributions could the Land Register make?

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