Obtaining a Grant of Confirmation in Scotland

When someone dies in Scotland, the procedure for obtaining Confirmation to their estate depends upon whether the deceased had a Will.

Where there is a Will

Step 1: Note the terms of any Will and/or other testamentary writings. This should provide details of the individuals who are entitled to be appointed as Executors and those who are entitled to benefit from the deceased’s estate.

Step 2: Take steps to ascertain the extent of the deceased’s estate. This involves obtaining date of death valuations of the deceased’s heritable property (land and buildings) and moveable property (furniture, jewellery, motor cars, bank account(s), share portfolio, pensions, insurance policies etc) and ascertaining the extent of any debts due by the deceased (including funeral expenses).

Once this information has been obtained, an inventory of the deceased’s estate can be completed which should then be included in the prescribed form for submission to the Sheriff Court (C1 form).

Step 3: (a) Where the deceased’s net estate is greater than the tax free limit (currently £325,000), the relevant documentation must be submitted to HM Revenue & Customs (IHT400 form and C1 form). Any Inheritance Tax liability must be settled in full at this stage, although the proportion of Inheritance Tax which relates to the deceased’s heritable property can be paid in instalments. HM Revenue & Customs will then stamp and return the C1 form confirming that the Inheritance Tax liability has been settled.

 or

 (b) Where the deceased’s net estate is less than £325,000, there is no requirement to submit form IHT400 to HM Revenue & Customs. Instead, form C5 is submitted to the Sheriff Court (see Step 4), which provides the necessary information for HM Revenue & Customs purposes and confirms to the Court that no Inheritance Tax is due.

Step 4: Apply to the relevant Sheriff Court for a Grant of Confirmation. This involves submitting the C1 Inventory form and C5 form (if no Inheritance Tax is payable) together with the deceased’s testamentary writings. If Inheritance Tax is payable, form C1 will already have been stamped by HM Revenue & Customs (see Step 3) and the C5 therefore need not be submitted.

The Court will then issue the Grant of Confirmation, which is the Executor’s authority to intromit with the deceased’s estate. Until this document has been granted, the Executors named in the Will have no authority to deal with the deceased’s assets.

Step 5: Exhibit the Grant of Confirmation to the organisations with whom the deceased held assets. Appropriate arrangements can then be made to ingather the estate and any outstanding debts can be settled from funds which have been ingathered.

 The deceased’s heritable property can now be sold or transferred by the Executors, the Grant of Confirmation acting as the necessary “link in title”.

Step 6 :  Prepare an Executry account detailing the intromissions of the Executors. Once the account has been approved by the Executors, appropriate payments can be made to the beneficiaries and other legitimate claims on the estate can be settled (including professional fees).  The Executors will have to ensure any Legal Rights claims have been discharged.

Where there is no Will

Step 1: Ascertain the individuals who are entitled to benefit from the deceased’s estate in terms of the laws of intestacy. The Succession (Scotland) Act 1964 will determine the distribution of the deceased’s estate as follows:-

(a) “Prior Rights” – a surviving spouse has an automatic right to the deceased’s dwelling house (up to a value of £300,000), the furniture (up to £24,000) and a cash right (£75,000 if there are no surviving children or £42,000 if there are surviving children).

  (b) “Legal Rights” – if the estate has not been exhausted by Prior Rights, the surviving spouse and children can claim Legal Rights from the deceased’s net moveable estate. Legal Rights do not extend to heritable property.

A surviving spouse can claim a one half share of the net moveable estate by way of Legal Rights if there are no surviving children. If there is a surviving spouse and surviving children, the spouse will receive one third of the net moveable estate and the children will receive one third equally between them. If there is no surviving spouse, the surviving children will receive one half of the deceased’s net moveable estate equally between them.

  (c) “The Free Estate” – this is the estate remaining after funeral expenses, debts, Prior Rights and Legal Rights have been settled. The order of those entitled to the Free Estate is as follows:- (a) children; (b) parents and brothers and sisters; (c) brothers and sisters (if no parents alive); (d) parents (if no brothers or sisters alive); (e) spouse; (f) uncles and aunts (maternal and paternal); (g) grandparents; and (h) grandparents’ brothers and sisters;

The only exception to these rules is that, in terms of the Family Law (Scotland) Act 2006, a surviving cohabitant can now apply to the Sheriff Court for a discretionary payment from the deceased’s estate. Such a payment can be equal to, but cannot exceed, the amount to which the surviving cohabitant would have been entitled if the couple had been married.

The above list establishes the individual(s) who may be entitled to be appointed as Executor(s). Roughly speaking, anyone who is entitled to inherit all or part of the deceased’s estate are entitled to apply to the Sheriff Court in order to be appointed as Executor. A surviving cohabitant cannot, however, be appointed as Executor.

Step 2: Submit a Petition to the appropriate Sheriff Court in order to have the relevant individual(s) decerned as Executor. This puts the Sheriff on notice that an application for a Grant of Confirmation by the individual(s) will be forthcoming.

Step 3: Obtain a Bond of Caution from an insurance company. This is, roughly speaking, a guarantee made by the insurance company that the Executor will distribute the deceased’s estate in accordance with the rules of intestacy.

Step 4: Take steps to ascertain the extent of the deceased’s estate. This is the same as the procedure where the deceased left a Will.

Step 5: Settle any Inheritance Tax liability in respect of the deceased’s estate. This is the same as the procedure where the deceased left a Will.

Step 6: Apply to the relevant Sheriff Court for a Grant of Confirmation. This is the same as the procedure where the deceased left a Will, except that the Bond of Caution will be submitted to the Sheriff Court along with the C1, C5 and testamentary writings.

Step 7: Exhibit the Grant of Confirmation to the organisations with whom the deceased held assets. This is the same as the procedure where the deceased left a Will.

Step 8 :  Prepare an Executry account detailing the intromissions of the Executors. This is the same as the procedure where the deceased left a Will.

Deceased domiciled in England and Wales or Northern Ireland

Where an individual dies domiciled in England and Wales (or in Northern Ireland), a grant of Probate or Letters of Administration will usually be obtained there which will cover the deceased’s estate in Scotland.

Occasionally, the Scottish Courts will issue Confirmation to the estates of individuals who have died in England and Wales (or in Northern Ireland), but this usually only occurs where:-

(a) the deceased left estate only in Scotland; or

(b) where the Executor does not require to administer estate in the other parts of the United Kingdom.

Deceased domiciled outwith the UK

Where an individual dies domiciled outwith the UK there may be circumstances where an application to the Commissary Department at Edinburgh Sheriff Court is required.  Confirmation may be granted in such estates where:-

(a) The deceased left estate in Scotland; or
(b) Where the Executor does not require to administer estate in the country of domicile.