If someone dies in Scotland leaving a will
The law and procedure relating to probate differs in different parts of the United Kingdom. The information in this section relates to obtaining a grant of confirmation in Scotland.
What is a grant of confirmation?
After a person’s death, all their assets, including their bank and building society accounts, are automatically frozen. This is the case whether or not they left a will.
If a person left a will, the people appointed as executors in the will must apply to the Commissary Department of the Sheriff Court serving the area in which the deceased was domiciled at the time of death for a grant of confirmation (the Scottish equivalent of probate).
Confirmation gives the executors authority to deal with or “administer” all the property and other assets belonging to the person who has died.
You should be aware that in Scotland, the executors are known as executor-datives (male) and executrix-datives (female).
As part of the application, the executors will need to provide a valuation of the deceased’s assets. Confirmation will not usually be granted until all or some of any Inheritance Tax that is due has been paid.
Only when confirmation is made, are the assets unfrozen and the executors can then distribute them in accordance with the deceased’s wishes as set out in their will.
Your first task is to collect details of all the property and all the debts belonging to the deceased.
The property will include any house, car, furniture, savings, life insurance, policies, personal possessions, jewellery and anything capable of being valued and of being transferred to one person to another. Account will also need to be taken of certain ￼assets that the deceased gave away during the seven years before they died.
The liabilities may include a mortgage, outstanding bills, etc and will also include the funeral expenses.
For help in valuing the deceased’s estate, please look at the separate section of Lasting Post called Valuing the Estate.
Unless the deceased’s estate is very simple and confirmation is not required, the executors should consider appointing a solicitor for the application for confirmation and for help administering the estate.
Executors must swear an oath
When the valuation has been completed, the executors must swear an affidavit or oath before a solicitor.
In the oath, the executors must confirm that they are appointed by the will. They must give the value of the gross and net estate of the deceased and they must swear that they will ensure that the estate will be distributed in accordance to the law and the terms of the will.
Inland Revenue Account
It will also be necessary to submit an Inland Revenue Account setting out all the assets and liabilities in the estate. However, HM Revenue & Customs allows a large number of low value and other estates where no inheritance tax is payable for various reasons to be “excepted estates.” In these cases, a brief return of information about the estate as a whole is all that is required.
Application for confirmation
When the oath has been completed and sworn, the application to the Sheriff Court can be made for confirmation. The executors can apply in person or instruct a solicitor to apply on their behalf.
The Sheriff Court will send confirmation to you by post along with any certificates of confirmation that have been requested.
Final winding up
Once all the assets have been collected and all the liabilities have been discharged, the net balance of the estate can be ascertained. This balance can then be distributed to the beneficiaries as dictated by the terms of the deceased’s will.
The executors should not distribute the estate until six months have lapsed from the date of death.
This gives individuals or companies with claims on the estate to make themselves known. Once six months have passed, the distribution can be made without any comeback and final winding up can then take place.
When a solicitor has been employed, they will usually prepare estate accounts setting out the full details of the administration of the estate.
Legal rights of spouse or child
In Scotland, a spouse or a child of the person who has died can claim legal rights over the estate. If this legal right is invoked, any entitlement under the will is forfeited.
These rights are important as claims can be made for up to twenty years after the death. As good practice, the executors should obtain formal discharges of these legal rights from the appropriate relatives.
The legal rights state that If the deceased is survived by a spouse and children (or their issue) the spouse has a legal right to one third of the moveable estate (assets other than property and land) and the children have a right to one third of the moveable estate between them.
If the deceased is survived by a spouse only, then this right is increased to one half of the moveable estate. Likewise, if the deceased is survived by children only, their entitlement will be increased to one half equally between them. In the event a child predeceases, their children can raise a claim on behalf of their parent.
The information which we provide through Lasting Post is in outline for information or educational purposes only. The information is not a substitute for the professional judgment of a Solicitor, Accountant or other professional adviser. We cannot guarantee that information provided by Lasting Post will meet your individual needs, as this will very much depend on your individual circumstances. You should therefore use the information only as a starting point for your enquiries.