Understanding What is Probate in Scotland: A Straightforward Guide

Are you uncertain about what probate is in Scotland? Put simply, Probate is the English term for the administration of a deceased person’s estate.  It is the legal process required to be undertaken after someone dies to manage and distribute their estate, either following a Will or the law where no Will exists. In Scotland, the equivalent terms is called Confirmation. Confusion often arises in Scotland due to a lot of the head offices of banks and financial institutions being based in England, the English terminology is referred to. This article provides a clear explanation of Confirmation, the steps involved, and sheds light on your role within this process—without overwhelming you with legal jargon.

Key Takeaways

Confirmation Defined: The Essentials

Confirmation encompasses:

In some situations, Confirmation may not be required. For instance, if the deceased’s estate only consisted of savings, jointly owned shares or money, or properties owned as “with survivorship” with others, then Confirmation may not be necessary. It should be emphasised that executors must wait to receive the grant of Confirmation before initiating financial arrangements or property sales.  This is a common misconception for executors where they believe they are able to sell/transfer a property because they are named as an executor in a Will.  Confirmation for a property must be granted first before a property can be sold/transferred to another party.

The Executor’s Role in Confirmation

An executor plays a pivotal role in the confirmation process. They are named in a Will, and it is their responsibility to apply for Confirmation and manage the deceased person’s estate, ensuring adherence to the Will’s instructions. This process begins with obtaining the grant of confirmation, which is the legal document that confirms their authority to deal with the deceased’s property and undertake the administration of the estate.

The executor’s responsibilities include:

When More Than One Executor is Named

When more than one executor is named, it can add a layer of complexity to the probate process. This is because co-executors must agree on key aspects of managing the estate, including financial transactions and asset sales. Disagreements among executors can prolong the probate process, add costs, and might necessitate court intervention to appoint alternative administrators. Co-executors need to collaborate effectively to facilitate a smooth probate process and ensure timely submission to the Sheriff Court of Confirmation.

Navigating Through the Confirmation Process

The entire Confirmation process includes the following steps:

The Confirmation process can be challenging, and many executors find it difficult to navigate. We recommend they seek the assistance of one of our Confirmation / Probate solicitors, who can advise on or take over any aspect of the process.

The duration of the Confirmation process can vary significantly. Particularly when there is a Will in place as opposed to no Will. While obtaining a grant of Confirmation typically takes three to five weeks without complications for the Sheriff Court to issue, the overall process can last on average six-nine months.  In estates where there is no Will in place, matters will take approximately three months longer. Disputes among executors, beneficiaries, or with creditors can add complexity and delays to the administration process.

Understanding Inheritance Tax Obligations

Inheritance Tax is another key aspect of estate administration. It is charged at a standard rate of 40% on the portion of the estate above the tax-free threshold of £325,000. However, there are additional reliefs that are available that may increase the tax-free threshold available to an executor to claim. For instance, the Residence Nil Rate Band (RNRB) could increase the Inheritance Tax threshold when a deceased person’s main residence is passed to direct descendants, potentially adding an additional amount to the tax-free threshold. Additionally, entitlement reduces inheritance tax when a surviving spouse or civil partner can inherit any unused Inheritance Tax threshold, potentially doubling the available nil rate band for the estate of the second partner. To ensure compliance with these regulations and pay inheritance tax correctly, it is essential to complete the necessary inheritance tax forms and Confirmation application.

The executor or administrator must report the estate’s value to HMRC and pay any due inheritance tax before applying for Confirmation. Accurate completion of the estate’s inheritance tax return is vital for paying the correct amount of tax. Thus, having a clear understanding of Inheritance Tax obligations is instrumental in effectively managing the deceased’s estate. Inheritance tax must also be paid within six months of a deceased person’s death.

Confirmation Fees and Associated Costs

The costs associated with Confirmation can vary depending on the value of the estate and the amount of work required. Click here for more details.

Jointly Owned Assets

Jointly owned assets present their own set of considerations during Confirmation. For instance, properties owned with a survivorship clause are viewed as automatically transferring to the surviving title holder the death of one owner.  This is regardless of what a Will stipulates that was to happen with this property. In such scenarios, it is unnecessary to obtain a grant of confirmation.

However, the situation is different for titles without a survivorship clause. When a person who jointly owns a property with another dies, if the title was without survivorship, the deceased’s share does not automatically pass to the surviving owner but can be willed to others or passed on under intestacy laws. Confirmation will be required first in relation to the half share before the property is transferred or sold in the future.

Dealing with Bank and Building Society Accounts

When it comes to managing bank accounts, the approach may vary. If a bank or financial institution requires it, a grant of confirmation may be needed to access the deceased’s accounts. However, banks and building societies may release funds without requesting Confirmation if the amount is below a certain threshold after funeral expenses have been paid. There is not one threshold that applies to all of the banks and financial institutions at the same time.  Each organisation has set their own threshold which varies.  We are aware of all of the thresholds and are able to provide you with guidance on this.

If a bank requires Confirmation to release funds, only the executor must apply for these even if not required for other aspects of the estate.

The Impact of Intestacy Rules on Confirmation

The intestacy rules in Scotland play a significant role in the Confirmation process when there is no will. These rules dictate the ranking order of who can apply to be appointed as an executor dative when there is no Will, how an estate is distributed, taking into account the deceased’s family circumstances.

For instance, the surviving spouse of a deceased is entitled to a right in property up to a maximum value of £473,000 provided they are ordinarily resident in the property at the time of death. If the value of the property is less than this, then this right is capped at the value of the property.  Secondly, the surviving spouse is entitled to household contents to a  maximum value of £29,000. Thirdly, the surviving spouse is entitles to a cash right.  The amount varies is deceased was also survived by children.  If no children  however then surviving spouse  will receive a cash right of £89,000.  Thus, a clear understanding of the intestacy rules can help ensure a fair and transparent distribution of the estate.

Specific Circumstances Affecting Probate

There are some specific circumstances that can significantly affect the probate process. For example, unmarried partners or partners not in a civil partnership have no right to manage the estate or entitlement under intestacy laws, which can complicate the probate process if it contradicts the deceased’s wishes. Moreover, the will can be challenged or contested if it is believed not to accurately represent the deceased’s intentions, or if there are concerns over its validity, thus impacting the timeline and complexity of probate.

Confirmation can be significantly delayed by disputes that arise between:

These conflicts can lead to prolonged waiting times in resolving the estate. Being mindful of these circumstances and preparing for them can help streamline the probate process.

Summary On Confirmation in Scotland

In conclusion, the Confirmation process in Scotland can be complex, but understanding its various components and potential challenges can make it more manageable. From the roles of executors to the intricacies of jointly owned assets, inheritance tax obligations, and the implications of intestacy rules, there is a lot to consider when navigating Confirmation. However, we have the knowledge and experience to handle Confirmation effectively, ensuring a smooth transition of the deceased’s estate.

Contact us today to find out how we can help you. Simply call us on 0800 292 2038 or complete the form above.

Frequently Asked Questions 

What is Probate and when is it necessary? 

Probate is the legal process of administering a deceased person’s estate in England, involving organising their assets and distributing them as inheritance after settling taxes and debts. The equivalent process in Scotland is called Confirmation. It is usually required unless the estate only includes specific assets like savings, jointly owned shares, or joint tenancy properties.

Who can apply for Confirmation? 

The executor named in a Will is responsible for applying for probate, while if there is no will, the closest living relative or those entitled to inherit can apply for Confirmation of Estate.

How long does the Confirmation process take? 

The Confirmation process can typically take from a 6 months  up to two years on average.  Estate administration does take approximately 3 months longer where the deceased died without a Will.

What happens to jointly owned assets during Confirmation? 

In short, jointly owned assets are handled differently depending on whether they are owned as joint owners or individually. With joint owners on a property, the surviving owner automatically inherits the deceased owner’s share.  With other joint assets, particularly bank accounts, it is more complicated and will depend on the source of funds.

What happens if there is no Will? 

If there is no Will, the closest living relative or those entitled to inherit under the rules of intestacy will need to apply for Confirmation to manage the estate. This is typically the spouse or civil partner, and can include children and other close relatives.