Understanding grant of probate in Scotland. To get the authority to administer the estate of someone who has died in England, Wales, and Northern Ireland, you need to apply for probate. But a Grant of Probate in Scotland is slightly different.
For one thing, probate in Scotland is actually called confirmation. You can’t apply for a Grant of Probate. Only a Grant of Confirmation.
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This is far from the only way the law differs in Scotland from the rest of the UK. Here are the most important things to understand:
What is probate in Scotland?
In Scotland, the legal right known as probate in the rest of the UK is called confirmation. This is the right to deal with the estate of a person who has died.
Before the deceased’s property can be sold or their assets distributed following the wishes laid out in their will, a certificate of confirmation must be applied for.
What are the differences between probate and confirmation?
The duties of someone with a Grant of Probate in the rest of the UK and a Grant of Confirmation in Scotland are largely the same.
Yet there are important differences in the application process and some of the ways the role functions:
1) Confirmation covers estates with or without a will
In the rest of the UK, if someone passes away and leaves a will behind, you apply for a Grant of Probate. But if they don’t leave will (they are said to be “intestate”), the system is different.
If someone dies without a will in the rest of the UK, you are required to apply for something called a Grant of Letters of Administration before you can administer their estate
This situation does not occur in Scotland. Though there are differences in the application process depending on the presence or absence of a will, confirmation needs to be applied for regardless.
2) Rules on executors
Some naming conventions and rules around executors are different:
- Executors must be over 18 in England and Wales, but only over 16 in Scotland
- In England and Wales, those with Letters of Administration dealing with an intestate estate are commonly referred to as “administrators” rather than executors
- Up to four executors can apply for probate in England and Wales, while Scotland has no limit on the number
3) Bonds and petitions
Though there is no Scottish equivalent of Letters of Administration, if you are applying for confirmation for an intestate estate (where there is no will) additional rules apply. You may need to apply for two things that don’t exist in the rest of the UK:
- A Bond of Caution – designed to protect inheritances from being distributed by executors who aren’t eligible for the role or who have bad intentions.
- The dative petition procedure – if the estate is large (over £36 000 by Scottish law) and there is no named executor.
Do I apply for confirmation or probate?
You can only apply for confirmation if the deceased owned at least one property or item of money in Scotland. If they didn’t, you should apply for probate.
If you have any doubts about this, it is best to get some expert legal advice.
Are there different types of confirmation?
Technically speaking, there are slightly different types of confirmation. The one you need will depend on whether the deceased left a will and on the size of their estate:
- Small estate – valued up to £36 000, administering this size of estate is often relatively straightforward. A Bond of Caution is required to administer this size of estate if there is no will.
- Large estate – valued over £36 000, this will require the prospective executor to apply for a Bond of Caution and also pass through the dative petition procedure. For large estates, it’s wise to seek specialist legal advice from a solicitor you trust.
Do I need to apply for a Grant of Probate in Scotland?
Applying for a Grant of Confirmation – the Scottish equivalent of a Grant of Probate – is unnecessary in certain limited circumstances, such as:
- Very small estate – if the estate is valued at under £5000 in total.
- Surviving joint owner – if the deceased’s property was jointly owned, any survivorship clause will likely mean the joint owner inherits automatically.
How do I apply for confirmation?
Applying for confirmation for any estate in Scotland means you will need to:
- Inventory and value the estate – calculate how much the estate is worth, including all property, investments, money, and other assets. This needs to be very precise.
- Pay Inheritance Tax – once you know the value of the estate, you know whether it will be defined as a “small” or “large” estate. You will also need to calculate and pay Inheritance Tax.
- Apply for confirmation – only then can you apply for confirmation using the forms and process laid out on the Scottish Courts website.
For all but the smallest estates, applying for a Grant of Probate in Scotland – a Grant of Confirmation as it is more properly known – is a complex process that should only be done with specialist legal advice on hand.
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