and promotes the interests of crofting in Scotland
to secure the future of crofting.
Intestate Succession - Transfer by Executor Notice to Landlords
What is Intestate Succession?
If a crofter passes away and hasn't written a Will, or their Will can't be used for some reason it is called "intestate succession." It means there's no clear plan for who inherits the crofter's tenancy. Sometimes crofters will have a Will for their belongings or their home, but succession for the tenancy of their croft is a separate matter. Sometimes there is no clear line of succession and on occasion several parties can have an interest in the tenancy.
There are a number of ways a croft succession may result in intestacy. They include:
- The deceased crofter didn’t have a Will stating how they wished their croft and/or grazing share to be passed on.
- The crofter did have a Will but the person or people it was left to did not notify the landlord and Commission of their acceptance of the croft tenancy(ies) within 12 months of the death of the crofter.
- The person or persons the croft is left to don’t want it.
- The croft tenancy is left in separate parts to more than one person, but the Commission refused the associated croft division application. (Only one person can be the tenant of a croft).
This is a complicated area of law, and you should seek independent legal advice from a solicitor in cases of intestate succession
Who can notify?
Where a crofter dies without leaving a Will or if a Will was made, but the bequest became null and void or otherwise was not given effect to, the Executor of the deceased crofter must take the steps detailed in the section below, within 24 months of the death of the crofter or the date at which the Commission was informed of the crofter’s death (as long as this was within 2 months of the crofter’s death).
If the timescales for Intestate Succession are not adhered to, then the tenancy of the croft will be at risk, and the landlord or Executor could give notice terminating the tenancy in accordance with section 16(3)(b) of the Succession (Scotland) Act 1964.
Alternatively, the Commission could take steps to terminate the tenancy and declare the croft vacant in terms of sections 11(4) - 11(8) of the Crofters (Scotland) Act 1993.
There are several steps required of an Executor before notifying the Commission of an intestate croft succession.
1. Obtain Confirmation from the Sheriff Court to the Estate of the deceased crofter. The croft tenancy and any grazings rights or shares must be detailed on the inventory to the Confirmation.
2. Transfer the tenancy of the croft (including any grazings rights or shares). There is an example docket which can be used to do this and is included as an appendix to the ‘Intestate Succession – Transfer by Executor Notice to Landlord(s)’ form.
3. Give notice of that transfer to the landlord of the croft, using the ‘Intestate Succession – Transfer by Executor Notice to Landlord(s)’ form.
4. At the same time, the Executor must also send a copy of the ‘Intestate Succession – Transfer by Executor Notice to Landlord(s)’ to the Commission, with Appendix 2, and accompanied by the relevant Registers of Scotland Application
The Registers of Scotland hold the Crofting Register, which is a map-based register of croft land. If you are submitting an ‘Intestate Succession -Transfer by Executor Notice to Landlord(s)’ you will need to either register the croft with Registers of Scotland for the first time, or if it is already registered, you will need to submit a form to update the register.
If the croft is not already registered, you need to submit a First Registration (FORM A) application along with the notification. In this application you will need to provide a map of the croft boundary. For details of how to prepare a map of the croft, and the correct form, please refer to the Registers of Scotland website.
If the croft is already registered, you will need to submit a Subsequent Event (FORM B) application, along with the notification.
You should submit the First Registration (FORM A) or Subsequent Event (FORM B) application to the Crofting Commission. These can be submitted by post. There is a fee of £90 which is paid when you submit your application. This can be paid by a cheque made out to the Crofting Commission, or by bank transfer. The Crofting Commission will check your application and, if it is correct, forward it to Registers of Scotland.
Here is a summary of the key points:
- You need to register your croft land with the Registers of Scotland if you are submitting a Transfer by Executor Notice Form.
- If your croft is not already registered, you need to submit a First Registration (FORM A) application.
- If your croft is already registered, you need to submit a Subsequent Event (FORM B) application.
- You need to pay a fee of £90 when you submit your Registers of Scotland application.
- The Crofting Commission will forward your application to Registers of Scotland.
Once the Crofting Commission has received your completed notification, and accompanying Registers of Scotland application, we will check to make sure that you have filled out the correct form, and submitted all of the required information. If you have not submitted everything correctly, you will be made aware and you will have a specified amount of time to submit the information requested.
If we have all the information we need, we aim to process the notification within 16 weeks.
The new tenant will replace the deceased crofter on the date the Crofting Register is updated.
Factsheet-Succession-03032022.pdf
law-policy-and-procedure-intestate-succession-transfer-by-confirmed-executor-2023.pdf
