How do you obtain a grant of confirmation or a grant of probate in Scotland?
Some of the terms used in this area of the law can be confusing. This article is designed to introduce you to some of them and to help you to understand what is involved in applying for confirmation to a deceased person’s estate. You may have been appointed as an executor in a Will and are finding the prospect of dealing with the deceased’s estate quite concerning. You will want to ensure that you comply with all the duties of an executor and that if any inheritance tax is due you are able to pay it within the time limit laid down.
Applying for confirmation in Scotland is the same as applying for probate in England and Wales. In fact you will often hear the word probate used in Scotland too.
A certificate of confirmation is the document issued by the Sheriff Court in Scotland which authorises the executor to proceed with the winding up of an estate. It is the equivalent of a grant of representation in England and Wales.
in Scotland an executor acts as a person’s representative after their death and the term executry describes the deceased’s estate while it is being administered by the executor.
What is confirmation or probate in Scotland?
Confirmation is a grant issued by the Sheriff Court and which gives the executor the necessary authority for instance to withdraw the deceased person’s money from a bank or to transfer the title of a property. The court has to be satisfied that the executor is the person with the right to administer the estate and to distribute any funds in terms of the Will or according to the law. A certificate of confirmation will be issued for each bank account where the sums held exceed that institution’s threshold and for any property which forms part of the estate. The relevant certificate has to be presented to each fund holder to allow the funds to be released.
Is confirmation or probate always required?
Confirmation may not be needed where an estate is small and the assets are valued at less than £36,000. In such cases where there is a Will free assistance is available from the staff at the local Sheriff Court.
If the funds held in a bank account are not large the bank may release the money without the need for confirmation. Each institution operates its own policy
If the deceased’s home was held on a joint title the ownership of their share may pass automatically to their partner and so there would be no requirement to apply for confirmation in respect of that house.
Who is responsible for obtaining confirmation or a grant of probate in Scotland?
If the person who has died has left a Will, an executor should have been appointed. It is the executor who is responsible for the winding up of the estate, gathering in the assets and distributing the funds or other items in the estate to the rightful beneficiaries, that is to those who are entitled to inherit.
What if there is no Will?
Where the person who has died has not made a Will the estate is referred to as intestate. An application will have to be made to the Sheriff Court for the appointment of an executor. This application will usually be for the appointment of the spouse, a child, a sibling or a parent and has to be attended to before moving on to applying for confirmation. A bond of caution may be required; this is a type of insurance policy which safeguards the interests of the people entitled to inherit the deceased’s person’s assets.
Making up a list of the deceased person’s assets
Where there is a Will the estate is referred to as testate. The first stage in the winding up process is the compiling of a list of all the deceased’s assets – the money in their bank accounts, their house if they own it and any shares or valuable items that they possess. The list is called an inventory. If they have any debts or liabilities these have to be taken into account and in due course they will be settled out of the estate funds before any funds are distributed to those entitled.
What documentation has to be prepared when applying for confirmation in Scotland?
The application to the court for confirmation is made on form C1, accompanied by form C5 and the Will if there is one. If inheritance tax is payable on the estate other forms and schedules require to be completed and submitted to HM Revenue and Customs. Specific details have to be obtained from any fund holders and accurate values placed on possessions such as jewellery and art work unless they are known to be of little monetary value.
How do you know if any inheritance tax is due and when must it be paid?
The current threshold over which inheritance tax may be payable is £325,000 but there are exemptions which may apply and these should be taken into account in any assessment of liability. If the person who has died leaves everything to their spouse no inheritance tax will be due and there are allowances for certain funds left to charities or for properties left to descendants. This is an area where it would be prudent to obtain professional advice. If tax is payable arrangements must be made to settle this liability before an application for confirmation is lodged.
How can Quill Legal help you?
Quill Legal can assist you to navigate your way through the winding up process, enabling you to carry out your duties as executor efficiently and minimising your stress. I specialise in executry work, obtaining confirmation or probate and dealing with the various issues which can arise when an estate is being wound up. I will help you with as much of the work as you wish. Executors might feel able to do some of the work themselves and simply need support with the application to the court. We are happy to discuss with you what you want our involvement to be. You do not have to incur any personal costs because your expenses are refundable from the estate, as are any legal fees.
Telephone: 0131 564 1044
If you have been appointed as an executor of a Will in Scotland,