The death of a close relative or loved one is always a very traumatic and emotional event, and is a time when you need support and help from a variety of people. We can provide help at this stressful time in terms of what legal tasks to attent to following the death of a loved one.
You will be feeling vulnerable and exposed and you will have heard all sorts of horror stories about the time taken and the fees charged by solicitors in getting Confirmation and winding up estates.
Wilson & Fish Solicitors recognise the difficulties facing you and we can offer clear and impartial advice on all aspects of obtaining confirmation and winding up an estate, including the Scottish equivalent of probate.
See our complete guide to confirmation, executors and winding up an estate in Scotland below or contact us now for expert advice on all aspects of the Probate Scotland and the confirmation process in Glasgow, and throughout Scotland.
- 1. What is Confirmation?
- 2. Applying for Confirmation
- 3. Obtaining Confirmation in Scotland
- 3.1 Confirmation and Small Estates
- 3.2 Confirmation and Large Estates
- 4. Why do I need Confirmation?
- 5. When do I need Confirmation?
- 6. When is Confirmation Not Needed?
- 7. Solicitors for Obtaining Confirmation
You may have been told by a bank or building, society that you need to obtain "Confirmation" or a "letter of Confirmation" before they can release the money and other property of someone who has died.
Confirmation is a legal document that is granted by the court.
It acts as proof that you - the executor - are authorised to deal with the property owned by the deceased person. Once you have the document, you can send it to all the banks, building societies and other organisation with which the deceased had an account or property. In return, they will transfer the money or property to you, as Executor, to distribute according to the Will.
The rules relating to confirmation depend very much on the size of the estate, and whether or not there is a Will.
To obtain Confirmation, an executor must provide a list of all of all the deceased's property at the time of death. The list - called an inventory - might include money, houses, land and shares. The inventory must include:
- all items of property, even those that have already been paid over to the deceased's representative(s); and
- property located in England, Wales or Northern Ireland.
Confirmation is possible only if the inventory includes at least one item of money or other property in Scotland. Contact our solicitors today for more information.
A major part of the application for confirmation is given over to an inventory of the estate. This is a list of everything that forms part of the estate, and it needs to be quite detailed, setting out a description of each item (such as an account name and number, or house address) and a value.
This means that before you apply for confirmation you must obtain an up to date valuation for everything in the estate. This process can take quite a bit of time, while you wait for all the companies and organisations to get back to you.
The application form will also set out your details, as executor of the estate, so that you can be officially authorised by the court.
If there is a Will, then the process is simple – the court can check the Will, check your identity, and approve the appointment.
If there is no Will, then you can still be appointed as an executor, but different procedures apply:
In a small estate, you will have to obtain an insurance policy, known as a bond of caution, to protect the estate in the event that any mistakes are made.
In a large estate you will have to officially petition the court to appoint you as an executor dative.
Once you have completed the application for confirmation, you must send it, together with the appropriate court fee and any accompanying documents, to the local sheriff clerk’s office.
The office will try to process the paperwork quickly, and confirmation is normally granted within a few days, enabling you to start the process of in-gathering the estate.
A small estate is one in which the total assets come to less than £36,000.
The processes involved in obtaining confirmation for a small estate are less complicated than for large estates. In fact, you do not need a solicitor in order to obtain the confirmation – the sheriff clerk at your local sheriff court can help you fill in the forms, and the Scottish Court Service provides a guide that you might find helpful.
However, the responsibility for winding up the estate will still remain with you, including paying off all the debts and making sure that each beneficiary receives what they are entitled to. So you might find legal advice helpful in dealing with the estate, regardless of size.
A large estate is basically any estate in which the total assets come to more than £36,000.
Sheriff clerks are not allowed to help executors apply for confirmation to large estates, and while you do not have to have legal help in going through the process, it is recommended, as the issues involved can be complex.
On top of this, estates with a value of over £325,000 are liable to Inheritance Tax, and this must be paid before or at the same time as making the application for confirmation. This means that you will have to pay the tax before you have received any money into the estate – and a short-term bank loan will be required.
The simple answer is that in most cases the bank or insurance company will require Confirmation before they will pay over the money to the beneficiaries of the deceased’s estate.
The idea is that by obtaining confirmation the court is confirming that a third party, the executor, has the right to the various bits of the deceased’s property and is entrusting that person to transfer those assets in accordance with the will or the law.
Sometimes if the estate is small (usually less than £36,000.00 ) and there is a will, a bank or insurance company will release money without the need for Confirmation. The court will not issue Confirmation to an executor until some or all of any Inheritance Tax that is due on the estate has been paid.
Confirmation is almost always needed when the person who dies leaves one or more of the following:
- £5,000 or more (although the figure can vary significantly depending upon which institution is holding the funds. In practice in some cases, Confirmation can be dispensed with in cases where the estate is worth up to £36,000, but in other cases lower limits will apply, depending upon which institution is holding the assets)
- Stocks or shares
- Certain insurance policies
- Property or land held in their own name or jointly with another without a survivorship destination in the title.
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In most cases above, the bank or relevant institution will need to see the Confirmation before transferring control of the assets. However, if the estate is small, some organisations, such as insurance companies and building societies, may release the money to you at their discretion.
Confirmation may not be needed where:
- The person who died left a total estate not exceeding £5,000 (although the figure can vary significantly depending upon which institution is holding the funds. In practice in some cases, Confirmation can be dispensed with in cases where the estate is worth up to £36,000, but in other cases lower limits will apply, depending upon which institution is holding the assets)
- The deceased owned everything jointly with someone else and everything passes automatically to the surviving joint owner
To establish whether the assets can be obtained without Confirmation, the executor would need to write to each institution informing them of the death and enclosing a photocopy of the death certificate (and Will if there is one).
For legal assistance from our executry solicitors on all aspects of the confirmation process in Scotland click here to contact us today, or call us on 0141 222 7951
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Contact our Expert Executry & Probate Solicitors Glasgow, Scotland
Call our specialist solicitors today on 0141 222 7951 or fill in our online enquiry form to find out how we can help you. Based in Glasgow, we assist clients throughout Scotland including Ayrshire, Falkirk, Edinburgh, Aberdeen, Dundee, Paisley, East Kilbride and Stirling.