Article Contents
- What is Probate (equivalent known as Confirmation in Scotland)?
- When is Probate Required?
- Does Probate Apply to Property?
- When Do You Need Probate if There is No Will?
- When is Probate NOT Required?
- How Long Does Probate Take?
- Do I Need a Solicitor for Probate?
- Frequently Asked Questions
What is Probate (equivalent known as Confirmation in Scotland)?
When someone dies, their estate (their property, all the money, personal possessions, and other assets) needs to be collected, managed, and distributed. In most cases, this requires legal authority to act on behalf of the estate.
- In England and Wales, this authority comes through a legal process called Probate.
- In Scotland, the equivalent process is known as Confirmation.
Both processes serve the same fundamental purpose: they give the named executor or administrator formal permission to deal with the assets in a deceased person’s estate. Without this authority, banks, building societies, and other institutions will typically refuse to release funds or transfer all the assets.
England & Wales: Probate
A Grant of Probate (where there is a Will) or Letters of Administration (where there is no Will) is issued by the Probate Registry – part of the HM revenue and customs court system.
Scotland: Confirmation
Executors apply to the Sheriff Court for a Certificate of Confirmation, which lists each asset and grants authority to uplift and distribute them. Different rules apply, including laws around prior rights and legal rights.
IMPORTANT NOTE
This guide covers both jurisdictions, but Scots law differs meaningfully from English law in estate administration. If the deceased lived in Scotland, always seek advice from a solicitor familiar with Scots succession law.
When is Probate Required?
Not every estate needs probate. Whether you need it depends primarily on what assets the deceased owned, how those assets were held, and their total value. There is no single universal threshold – it varies by institution and asset type.
However, estates valued at less than £5,000, particularly if there is no property, are often exempt from the probate process.
As a general rule, probate is likely to be required in the following circumstances:
- The deceased owned property or land in their sole name
- The deceased held investments, shares, or stocks in their own name
- Bank or building society accounts exceed the institution's internal threshold
- The estate is subject to Inheritance Tax
- There are complex or contested aspects to the estate accounts
Bank and Financial Institution Thresholds
Each bank and building society sets its own internal threshold above which it will require sight of the Grant of Probate before releasing funds. These thresholds vary considerably and are reviewed periodically. The table below gives a general guide, though you should always confirm directly with the relevant institution:
High Street Banks:
Typical threshold range – £15,000 – £50,000 – varies significantly by provider; some use a sliding scale
Building Societies:
Typical threshold range – £5,000 – £30,000 – often lower thresholds than banks
Investment / Stocks & Shares ISAs:
Typical threshold range – Usually any ammount – probate is almost always required for investments
Premium Bonds / NS&I:
Typical threshold range – Up to £5,000 – NS&I may release small amounts without probate
Workplace / Private Pensions:
Typical threshold range – N/A (usually paid direct) – Death in service benefits typically bypass the estate
PRACTICAL TIP
Always contact each financial institution directly to confirm their current threshold before assuming probate is or isn’t required. These figures change, and getting this wrong can delay administration significantly.
Does Probate Apply to Property?
Property is often the most significant asset in an estate – and it is one of the clearest triggers for probate. However, how the property was owned matters enormously.
Solely owned property
If the deceased owned a property in their sole name, probate will almost certainly be required before that property can be sold or transferred. The Land Registry will require evidence of the Grant of Probate before registering any change of ownership.
Jointly owned property
Property held as joint tenants – the most common form of joint ownership between spouses and civil partners – passes automatically to the surviving owner by the right of survivorship. Probate is not required for this specific asset, though it may still be needed for other parts of the estate.
Where property was held as tenants in common, each person owns a defined share. That share forms part of the deceased’s estate and does not pass automatically; probate may be required.
When Do You Need Probate if There is No Will?
Dying without a valid Will is known as dying intestate. In these circumstances, probate does not become unnecessary – in fact, the process becomes more important, and often more complex.
Instead of a Grant of Probate, a close relative (usually the spouse, civil partner, or adult children in order of priority) must apply for Letters of Administration. This document grants them the authority to administer the estate in accordance with the intestacy rules – a prescribed legal order that dictates who inherits and in what proportion.
In Scotland, if there is no Will, the executor-dative must apply for Confirmation before the Sheriff Court, and Scots law’s specific provisions around prior rights and legal rights govern how the estate is divided.
DID YOU KNOW?
If someone dies intestate and their unmarried partner is not legally recognised as a spouse or civil partner, they may have very limited rights under the intestacy rules in England. In Scotland, cohabitants can make a court claim, but this is time-limited. A Will is the only reliable way to protect a surviving partner’s inheritance.
When is Probate NOT Required?
Probate is not always necessary. There are a number of circumstances in which an estate can be administered without it:
- Small estates: Where the total value of assets is low and falls below each institution's individual threshold, accounts may be released informally.
- Jointly held assets: Assets owned as joint tenants (bank accounts, property) pass by survivorship and do not require probate.
- Assets held in trust: Trusts bypass the estate entirely and do not require probate.
- Life insurance with a named beneficiary: Policies written in trust or with a nominated beneficiary pay out directly and do not form part of the estate.
- Nominated pension death benefits: These are generally paid direct to beneficiaries outside the estate.
Even in smaller estates, it is worth seeking professional advice. A solicitor can quickly assess whether informal administration is possible or whether a Grant of Probate will be needed before institutions will cooperate.
Call our free bereavement support line on 0141 674 6401 for further advice
How Long Does Probate Take?
One of the most common questions during bereavement is how long the process will take. Straightforward estates in England and Wales can take anywhere from six months to a year from date of death to final distribution. Complex estates – those involving property, business interests, Inheritance Tax disputes, or family complications – can take considerably longer.
In Scotland, the Confirmation process itself is generally quicker once paperwork is submitted, but the overall administration timeline is similar. Delays most often arise from Inheritance Tax reporting, property sales, and tracing beneficiaries or asset holders.
Working with an experienced solicitor can significantly reduce delays by ensuring applications are accurate and complete from the outset, and by managing communications with financial institutions on your behalf.
Do I Need a Solicitor for Probate?
There is no legal requirement to use a solicitor to submit a probate application – executors can apply for probate online through the HMCTS portal (England and Wales) or the local Sheriff Court (Scotland). However, there are very good reasons why many families choose professional support:
- Probate involves legal and financial complexity that can be difficult to navigate while grieving
- Errors in Inheritance Tax returns can result in penalties and delays
- Solicitors carry professional indemnity insurance, protecting beneficiaries if something goes wrong
- Contested estates or those with complex assets almost always benefit from legal expertise
- Many families simply find it a relief to have someone else handle correspondence with banks, HMRC, and the Probate Registry
At Jones Whyte, we understand that enquiring about probate often happens at the hardest of times. Our private client team offers compassionate, clear-fee support – walking you through every stage without jargon or unnecessary delay.
Contact Jones Whyte Private Client Team
Our private client solicitors specialise in Wills, estate administration, and bereavement support across Scotland and England. We are committed to providing compassionate, clear legal guidance when families need it most.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
