Confirmation in Scotland – what it is and how to apply. Confirmation in Scotland is the equivalent of applying for probate in England, Wales, and Northern Ireland. It is necessary in much the same circumstances. But the actual application process and many of the details are different.
Here are the important things to understand about successfully applying for a Grant of Confirmation in Scotland and the circumstances where you might and might not need to do so:
What Is Confirmation?
In order to administer the estate of a person who has died, you need to apply to receive the legal right to do so. In Scotland, this right comes in the form of a legal document called a Grant of Confirmation issued by the Sheriff Court.
Once they have this document, the person responsible for administering the estate – usually the executor named in the will – can distribute inheritances to the beneficiaries, deal with any debts, and handle any property in the way the deceased wished.
If there is no will, the administrator of the estate will follow the guidelines laid out in Scottish law.
Why Do I Need A Certificate Of Confirmation?
Even as the executor of an estate, without a Grant of Confirmation you will find it very difficult or impossible to manage most assets belonging to the deceased.
The common example is that banks will not usually allow an executor to access the bank accounts of someone who has died before they see the certificate.
However, there are some exemptions to this. For example, most banks will allow access to limited funds as well as money for specific purposes such as to pay funeral costs.
Different banks have different individual limits on the size of funds they will provide access to before seeing a certificate of Confirmation. Certainly, you will need confirmation before you can deal with any property the deceased may have owned.
Do I Need To Apply For Confirmation?
Of course, you only need to (and you only can) apply for confirmation if the deceased had at least one property or item of money in Scotland.
On top of that, some questions affect whether or not you need to apply for confirmation or the type of process you need to follow to get it:
1) Is It A Very Small Estate Or Are Assets Jointly Owned?
Some estates do not require confirmation. These tend to be:
- Very small estates – where the total value of the estate does not exceed £5000.
- Joint ownership – if the deceased owned everything of value with someone else (typically their spouse) and there is a survivorship clause, ownership will automatically pass to the survivor.
2) Is The Estate Small Or Large?
These have actual legal definitions. You can calculate the size of an estate by totalling the value of all the assets (such as property and investments), personal possessions, and money. In Scotland, this is known as the “inventory”. You should not include any negatives, such as debts owed.
- A small estate in Scotland is understood to be worth £36 000 or less. The Sheriff Clerk may be all the assistance you need to deal with a small estate.
- A large estate in Scotland is worth more than £36 000. These estates tend to get much more complex and expert legal advice is often a major benefit if you need to deal with one.
3) Is There A Will?
The confirmation application process differs depending on whether the deceased died:
- With a will (testate) and any size of estate – as long as the will is valid, you can follow the process for applying for confirmation depending on whether the estate is small or large.
- Without a will (intestate) and small estate – you will likely need to apply for a “Bond of Caution” (a form of protection against ineligible or potentially malicious executors) before you can apply for a Grant of Confirmation.
- Without a will (intestate) and large estate – follow the dative petition procedure to be appointed as executor, then follow the process for small estates where the person died intestate.
This is a complicated process and should almost certainly involve expert legal advice.
How To Apply For A Grant Of Confirmation In Scotland
The application process for confirmation is similar but not identical to the process of applying for probate elsewhere in the UK:
- Inventory the estate – this involves adding up the deceased’s total heritable property (land and buildings) and moveable estate (money, possessions, and investments).
- Value the estate – how much is the estate worth? Is it less than £36 000, and thus, “small”? Be sure not to subtract debts from the value.
- Pay any necessary Inheritance Tax – in Scotland, estates worth over £325 000 must pay Inheritance Tax (IHT). Some estates are excepted. Chiefly, estates of low value, those that will pass to a spouse or eligible charity, or those of people who lived permanently abroad and have less than £150 000 in UK assets.
- Submit paperwork – once you know the value of the estate and have paid IHT, you can submit your inventory form (C1), relative form (C5), and the IHT400 Inheritance Tax form to the Sheriff Court.
All in all, applying for confirmation in Scotland can be a lengthy and complex process if the estate is of any size. This makes obtaining specialist legal advice a sensible step for all but the smallest and most straightforward of estates.
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