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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.

4.1 Functions of the trustee

It is the duty of the trustee to ingather the debtor’s estate and to manage and realise that estate for the benefit of the creditors. It is implicit the trustee should be efficient and economical in the exercise of their functions in order to optimise the return to the unsecured creditors.

4.1.1 General functions of the trustee

A trustee’s general functions are specified in Section 50 of the Act and include a duty to:

  • recover, manage and realise the debtor’s estate, whether situated in Scotland or elsewhere
  • distribute any funds paid or realised from the debtor’s estate amongst the debtor’s creditors according to their respective entitlements
  • ascertain the reasons for the debtor’s insolvency and the circumstances surrounding it
  • ascertain the state of the debtor’s assets and liabilities
  • maintain a Sederunt Book during the term of office for the purpose of providing an accurate record of the bankruptcy process
  • keep regular accounts for the debtor’s estate, such accounts being available for inspection at all reasonable times by the commissioners (if any), the creditors and the debtor
  • supply the Accountant with such information as they may consider is necessary to enable the Accountant to discharge their functions under section 50(1)(g) of the Act, whether or not the trustee is still acting in the bankruptcy (see Appendix H)

In addition to the documents the trustee must supply to the Accountant to discharge their functions under the Act the Accountant can specify other documents be provided at various stages in the process.

The trustee must have regard to advice offered by the commissioners, if there are any.

A trustee is not required to undertake functions 1 to 4 above, if in their view, it would not be of financial benefit to the estate and in the interests of the creditors to do so.

A debtor, creditor or any interested person who is dissatisfied with any act, omission or decision of the trustee may apply to the sheriff. The sheriff can confirm, annul or modify any act or decision of the trustee or give a direction if they think necessary.

4.1.2 Additional functions

If the trustee has reasonable grounds to suspect an offence has been committed in relation to a bankruptcy by:

  • the debtor in respect of their assets, their dealings with the trustee or their conduct in relation to their business or financial affairs
  • a person other than the debtor in that person's dealings with the debtor, the interim trustee or the trustee in respect of the debtor's assets, business or financial affairs

They are required to report the matter to the Accountant.

If a trustee has reasonable grounds to believe any behaviour on the part of the debtor is of a kind that could result in a BRO being granted, the trustee is required to submit a report to the Accountant for investigation and consideration. See section 16 for more information.

Either report shall be absolutely privileged and details should not be disclosed to any party.

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