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Notes for Guidance - Bankruptcy (Scotland) Act 2016 (as amended)

This guidance describes the general functions of Accountant in Bankruptcy, interim trustees, trustees and commissioners in relation to their responsibilities regarding bankruptcies which started on or after 30 November 2016.

10.1 Management and realisation of the estate

The trustee may do any of the following things:

  • carry on or close down any business of the debtor
  • bring, defend, continue any legal proceedings relating to the estate of the debtor
  • create a security over any part of the estate
  • where any right, option or other power forms part of the debtor’s estate, make payments or incur liabilities with a view to obtaining for the benefit of the creditors, any property which is the subject of the right, option or power
  • borrow money in so far as it is necessary for the trustee to do so to safeguard the debtor’s estate
  • effect or maintain insurance policies in respect of the business or property of the debtor

The trustee has a statutory obligation to consult with the Accountant concerning the management and realisation of the estate. Occasions when the trustee must consult are contained with these notes. Failure to obtain the necessary prior consent may result in remuneration and/or reimbursement of outlays being denied.

The trustee should of course consult with the Accountant at any time they consider it appropriate or prudent to do so.

The trustee must comply with any general, or specific, directions from:

  • the creditors
  • the sheriff following an application by the commissioners
  • the Accountant

Subject to the duty to consult with the Accountant and any advice offered the trustee may do anything if in their opinion it would be beneficial to the administration of the estate.

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