How To Apply For Confirmation In Scotland
Like probate in the rest of the UK, you need confirmation before you can deal with the estate of a person who has died. If you’re trying to work out how to apply for confirmation in Scotland, here is everything you need to know:
Do I need to apply for confirmation?
There are some circumstances where you may not need to apply for confirmation in Scotland after a person passes away:
- They do not own any property or have any possessions or money in Scotland.
- The total value of their estate is under £5000.
- Everything they own is jointly owned with someone else and there is a survivorship clause.
Otherwise, you will need to apply for confirmation using the process outlined below.
Who can apply for confirmation?
Before you begin the process of applying for confirmation, it is important to check if there is a will. This will govern who can legally apply for confirmation.
- If there is a will – the will should (but may not always) state who the executors will be.
- If there is no will – there is a strict legal order of priority detailing who among the deceased’s relatives can apply to be the executor of their estate. This will add extra steps to the confirmation process.
Who can be executor of an estate?
The executor of a will should be named within it. The most common choices are close friends and family members or a professional such as a solicitor.
If there is no will or the will does not name an executor for some reason – or if the executors are already deceased or have become incapable of carrying out an executor’s duties – the deceased’s closest next of kin may be able to apply to become executors.
In Scotland, there is a specific order in which the deceased’s relations can apply to be executor. For instance, their surviving spouse has the highest priority. If there is no spouse, the priority moves on to other relatives such as children, siblings, and parents.
If you are applying for confirmation and are not named as the executor in the will (this may be because the estate is intestate, meaning there is no will), you will also need to apply for:
- A Bond of Caution – a kind of cover that prevents ineligible or potentially malicious actors from applying to be an executor.
- To be a “dative executor” – passing through the dative petition procedure if it is a large estate (valued at over £36 000).
How to apply for confirmation in Scotland
1) Inventory the estate
The first task in the confirmation application process is to inventory (this is the actual technical legal term) all of the deceased’s assets.
In Scotland, this falls into two categories. These are heritable property (their land and buildings) and moveable property (money and other assets that can be transported). Altogether, these include:
- Money in bank accounts
- Investments, such as stocks and shares
- Their house or other property
- Any land they own
- Valuable personal possessions (these may have been valued in any insurance policies the deceased may have had)
It can take some time to complete a full inventory of an estate. Some organisations take a while to respond to requests and it takes time to engage any necessary surveyors or valuers.
If the estate is large or complex, it can be risky to do this without expert legal assistance. This is because even honest mistakes in the valuation process may result in financial penalties later on.
Be sure to include all online and digital assets as well as physical ones. It is also important not to subtract any debts or negatives from the total.
2) Determine if the estate is liable for Inheritance Tax
The threshold for Inheritance Tax (IHT) in Scotland is £325 000. Estates valued below this are exempt from paying IHT. This tax needs to be paid before an executor can get confirmation.
There are also some exceptions to this rule, including those for:
- Spouse or some charities inherit – if the only beneficiary of an estate is the deceased’s spouse or certain types of charity, an estate can be exempt from IHT.
- Deceased lived abroad – if the deceased lived abroad and had less than £150 000 in assets in the UK, they may be exempt from IHT.
These exemptions may not always apply though. For example, if the deceased made many gifts to – for instance – a trust before they died to bring their total assets below the Inheritance Tax threshold. Or if they had lived in the UK within a certain timeframe of their death (usually seven years).
There are also other exemptions. For instance, a surviving spouse may be able to use the IHT exemptions of a partner who predeceased them. This is why it’s a smart move to consult expert legal advice before you apply for confirmation in Scotland for all but the smallest estates.
3) Pay Inheritance Tax and fill in forms
Once you have determined the correct amount of Inheritance Tax to pay and paid it, you can fill in the relevant forms and send them off to the Sheriff Office:
- Form C1 – sometimes called the Confirmation Form or the “inventory form”. If the deceased lived elsewhere in the UK, different forms may be necessary.
- Form C5 – the Relative Form.
- Form IHT400 – the Inheritance Tax form needs to be completed even if the estate is exempt or small.
As long as all of the above are filled out correctly, you should receive your certificate of confirmation in around three months. Again, this can take longer for large estates.
If you want your first attempt to be successful though, applying for confirmation in Scotland for all but the smallest estates should be done with the advice of a legal professional close at hand.
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