When someone dies, there are a range of administrative steps that must be carried out by the person acting as the deceased's representative. This includes ingathering the assets that make up the estate, paying off any outstanding debts and any Inheritance Tax due on the estate before finally distributing money, property and possessions left at the end of this process to the beneficiaries listed in the Will.
To be able to carry out the role of dealing with an estate, you will need to be able to demonstrate that any Will left by the deceased is valid and that you have legal authority to collect any assets held by them and to distribute them in line with their wishes. Confirmation in Scotland, or probate in England and Wales, is the process whereby the courts grant authority to do so.
What Are the Main Differences Between Confirmation and Probate?
While there are many similarities between the processes of confirmation used in Scotland and probate in England and Wales, procedurally there are many differences.
The family division of the High Court in England has jurisdiction to make grants of probate in England and Wales, although the chancery division and the county courts also have certain powers.
In Scotland, applications for confirmation must be made to the local sheriff clerk's office, or to the sheriff court in Edinburgh. Applications will typically be processed quickly, with confirmation being granted within 3-4 weeks.
Testate or Intestate
If someone dies leaving a Will, they are said to have died testate. If the deceased did not leave a Will, this is called dying intestate. In such circumstances, a set of prescribed legal rules, called the Rules of Intestacy, are used to determine how their estate will be shared. An executor will also have to be appointed by the court (as a relative or friend will usually be appointed to this role in the Will).
In Scotland, confirmation will be granted irrespective of whether the person died testate or intestate. In England and Wales, the type of grant will depend on the validity of any testamentary writings left by the person who has died. The three types of grant are:
- Letters of administration with Will annexed
- Simple administration
The Rules of Intestacy also apply differently in England and Scotland, with different provisions for spouses and children of the deceased.
Executors and Administrators
The person who deals with an estate in Scotland is called an executor. In England and Wales, this person may be an executor or administrator depending on the type of grant obtained. In England and Wales, the person obtaining the grant must be 18. In Scotland, executors must be aged at least 16 years. In Scotland, there is no maximum number of executors, but in England and Wales, a maximum of four people can obtain a grant.
Grants in England and Wales must be supported by an oath, which must be sworn in the presence of a solicitor. In Scotland, there is no such procedure.
Bonds of Caution
In Scotland, when someone dies intestate a bond of caution must be obtained by the executors which acts as a type of insurance policy. In England and Wales, there is no such requirement.
"After having three times unsuccessfully submitted documents to the Sheriff court for confirmation and the court being unable to give advice due to the value of the estate, I had phoned a number solicitors looking for a fixed price to carry out the work but was only being given hourly rates it was then that I found the details for Wilson Fish online and contacted them. The process was done very fast and was sorted out quickly. Thank you for your assistance."
- Boilerdoctor Accounts, Scotland, January 2020
Contact our Expert Executry & Probate Solicitors Glasgow, Scotland
Our executry lawyers are based in Glasgow, but we regularly take instruction from clients throughout Scotland including Ayrshire, Falkirk, Edinburgh, Aberdeen, Dundee, Paisley, East Kilbride and Stirling. Call us today on 0141 222 7951 or fill in our online enquiry form to find out how we can help.