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

When the award has been made by the court the debtor should be provided with a copy of the Statement of Assets and Liabilities (Form 10) and a Statement of Undertakings (Form 13), as prescribed in The Regulations and informed to return the completed and signed forms to the trustee not later than seven days from their issue.

If a debtor fails to provide the trustee with a complete and accurate statement of all their assets and liabilities (wherever they are kept and situated) including a signed statement of undertakings, the actions that can be taken by the trustee are detailed at section 11 and section 16.

The documents should be uploaded to BASYS four days before the date of the statutory meeting or within 60 days from the date of award. 

When a debtor applies for their own bankruptcy the debtor application contains the information held in a Statement of Assets and Liabilities.

The trustee can obtain a copy of this document from BASYS by selecting print debtor application details on the relevant case. A signed copy of the Statement of Undertakings will also be available in the documents tab, named document type : Part 2 of the Bankruptcy Application Pack.

3.3.1 Statement of Affairs

Upon receipt of the debtor’s Statement of Assets and Liabilities and the Statement of Undertakings, the trustee must prepare a Statement of Affairs which should indicate whether, in the opinion of the trustee, the debtor’s assets will be able to pay a dividend.

When the debtor does not provide the relevant documentation the trustee must prepare a Statement of Affairs with the information they do hold and advise creditors by way of a note.

The Accountant requests the Statement of Affairs is provided in the format shown in the example Statement of Affairs template.

A copy should be uploaded to BASYS to be placed in the electronic Sederunt Book. 

3.3.2 Inventory and valuation

The trustee must make up and maintain an inventory and valuation of the estate. The Accountant requests that the document is provided in the format shown in the example inventory and valuation template. 

A copy should be uploaded to BASYS to be placed in the electronic Sederunt Book. 

3.3.3 Ascertain the reasons for insolvency

The trustee is required to ascertain the reasons for the debtor’s insolvency and the circumstances surrounding it under Section 50(1)(c) of the Act.

It is recommended the debtor is interviewed by the trustee, or a suitably qualified member of staff, and the interview takes place after receipt of the debtor’s Statement of Assets and Liabilities.

The interview may take place at the debtor’s home, place of business, trustee’s office, or over the telephone as deemed most appropriate by the trustee.

A supplementary questionnaire designed to aid and provide a record of the interview is available. Please note this is not a statutory document that is required to be completed and signed by the debtor under the legislation.

However, if available a copy should be uploaded to BASYS but should not be included in the Sederunt Book. 

If the debtor fails to participate in an interview the trustee can consider taking action as detailed at section 11 and section 16. The trustee should also use alternative sources to ingather the information and/or evidence by contacting relevant organisations or individuals directly.

The trustee should use the evidence gathered from the debtor to form an opinion as to the reasons for the insolvency. The trustee must consider if the debtor’s behaviour prior to, and immediately after, award requires the submission of a BRO application. See section 16 for more information.

This information should be provided to the Accountant in accordance with section 42(3)(c) of the Act as follows:

• the trustee’s opinion of the cases of the insolvency;
• to what extent the conduct of the debt may have contributed to the insolvency.

The information provided by the trustee will be absolutely privileged.

The document should be uploaded to BASYS four days before the date of the statutory meeting or within 60 days from the date of award. It should not be included in the electronic Sederunt Book.