Answering some of the most common queries about executry and probate

Executry & Probate Frequently Asked Questions

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Answering your Executry Questions

Winding up a loved one’s estate can seem daunting, but it needn’t be overwhelming. Our solicitors are here to help at any stage, and we have put together the below “frequently asked questions” section to help answer some of the most common queries you may have.

We understand that dealing with a loved one and deceased’s estate can be incredibly daunting as well as overwhelming. Our specialist solicitors have extensive experience helping clients administer the estate of their loved ones including helping with legal matters, tax, administrating and selling property and guidance and support with estate administration as a whole. 

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For advice on all matters regarding the winding up of an estate, please get in touch. We offer a personal, compassionate and caring service delivered by expert solicitors.

Here are the answers to some commonly asked questions regarding the execution of a Will and the winding up of an estate:

Questions And Answers

Probate and confirmation are very similar processes, however there are procedural differences between the two. 

Key differences between probate and confirmation:

  • Probate is an order of the high court, whereas confirmation in Scotland is granted by the commissary department of the local sheriff court or Edinburgh sheriff court.
  • If someone dies leaving a valid will, they are deemed testate, if they do not they are deemed intestate. In Scotland confirmation is granted, if required, whether the deceased died testate or intestate. In England, there are three different grants depending on if the deceased died testate, or intestate. 
  • In Scotland, those responsible for administering the estate are only called executors, whereas in England, they can also be declared administrators depending on the grant of probate obtained. 
  • The executor in Scotland must be aged 16 or over, whereas in England they must be 18 or over
  • In Scotland, there is no maximum number of executors who can obtain confirmation. In England, a maximum of four people can obtain a grant of probate.
  • Confirmation forms include C1, C5 and inheritance tax forms as opposed to probate and inheritance tax forms in England. 
  • When a deceased dies intestate, an executor may have to obtain a bond of caution in Scotland, a type of insurance policy, before they can obtain confirmation. This is not the case for probate in England.

There are two types of confirmation: small estate or large estate.

Small estates refer to an estate where the total value is £36000 or less and a large estate is anything that totals more than this value. The total value does not include the deduction of any debts. If you are dealing with a large estate, it is highly recommended to take out legal advice, with solicitors like Neil Kilcoyne.

Depending on the type of confirmation, there will be different confirmation forms to be filled out. Generally C1 is the inventory form to be filled out, and you will also need a C5 or IHT400. A solicitor will be able to advise you on the correct forms to be completed. As well as this, a solicitor can also help you with establishing and applying to pay off any debts from the estate or taxes.

While probate and confirmation refer to the process of being able to administer and distribute the estate, the estate administration process refers to the entire process of dealing with the deceased’s money, property, debts, and gathering and distributing all the assets. This can also include determining if the deceased left a will, arranging a funeral, obtaining a death certificate, applying for probate/confirmation and dealing with tax affairs.

Below are the main steps taken by executors during the probate process. We have also detailed how long each step should take.

1. Registering the death 

In Scotland, you need to register a person’s death within 8 days.  After registering the death, you will get a death certificate. You will need this to start executing a will.

2. Inform organisations and beneficiaries 

You will need to contact all of the companies the person who has passed dealt with and close their accounts/end memberships etc. You should also contact all of the beneficiaries of the estate to let them know they are entitled to some of it. 

3. Submit grant of Confirmation form and inheritance tax form

You can find, fill out and submit both of these forms online. You will need to send paper versions of certain documents such as the will though. There is a lot of complicated and detailed information that needs to be included in these forms, so if you’re not sure, you might want to consider enlisting the help of a solicitor. 

4.Sort out inheritance tax

You should aim to sort this out ASAP. It may involve taking out a loan as the bill will usually be due before the assets included in the estate are released. 

5.Pay off any unpaid debt 

Any unpaid debts like credit card bills, mortgages and finance agreements should be paid for by the estate. This excludes student loans. If there isn’t enough in the estate to pay all of the debts, you will need to come to an agreement with the creditors. 

6. Claim on the deceased person’s life insurance

If the deceased had life insurance, mortgage insurance or funeral insurance, you will need to contact the insurance company to arrange a payout. You can expect a life insurance payout in around 30 – 60 days.

7. Distribute the remaining assets

Once all debts have been settled, you can distribute the remaining assets to beneficiaries according to the will.

If someone in the will has passed away, their portion is usually divided between all the other beneficiaries unless otherwise stated in the will. 

No, even if you have been appointed as executor, you do not have to take on the role. This is something you can discuss with a solicitor, like us on how best to take forward the will. Dealing with an estate can be difficult and upsetting, so do not feel like you have to deal with it alone. 

In order for an executor to deal with the estate, they may need to apply for a special legal authority first, called probate, or in Scotland, it is known as confirmation.

When someone dies, their estate, which can include money, property, shares, and possessions must be administered. The person who is made responsible for administering the deceased estate, is known as an executor and the process is known as probate/confirmation.

International or cross-border probate/confirmation happens when the deceased lived in one country but owned assets in a different country. Your case may fall under this category if the deceased was a:

• Scottish national who owned assets abroad
• Foreign national who owned assets in Scotland
• An expatriate who still had assets in Scotland
• Someone who lived in Scotland whose official home for tax is in another country

International Executry can be complicated and a lot more time-consuming than normal executry and confirmation. When it comes to administering an estate with foreign assets, it is essential to have an understanding of the different taxes, laws, and processes in the country that holds the assets, as well as a thorough understanding and knowledge of Scottish laws.

As can be seen by the duties of an executor, winding up an estate is often a complex process with many potential pitfalls. Hiring a solicitor will mean we can advise you and support you in a number of matters including:

• Matters which could potentially minimise the estates liability to inheritance tax
• To help you apply for confirmation
• To explain the rules of legal rights of those who do not appear as beneficiaries in a will, the validity of informal or DIY wills and the ability to rectify the lack of formalities with them. 
• To advise you on what to do if it appears that there are not enough assets in the estate to cover outstanding tax, expenses, bills and other liabilities.
• To advise in the case of a complicated will, where the estate is complicated such as money abroad, money in a trust, or if the person has a business.

With over 20 years of experience in dealing with complex small and large estates our team of probate solicitors are here to lead you through that process as smoothly as possible. It’s why we have become, and remain, one of the top probate solicitor firms in Scotland.

Probate in England and Wales, or confirmation as it is also known in Scotland, is the right to handle a person’s estate (money, property & possessions) when they die.

Probate is just one part of the wider estate administration process, which is the entire process of winding up a person’s affairs after they’ve died. Probate and Confirmation are processes in which an executor(s) is granted legal title to the dead person’s assets or estate. Confirmation and probate are both attained through submitting an application to the court. In Scotland confirmation applications are lodged with the Sheriff court.

With a grant of probate in England and Wales, executors can ingather assets and distribute them to the beneficiaries of the estate. In Scotland, the process is a little different and a detailed list of the dead person’s assets must be prepared. This is known as an inventory. The court grants confirmation to the assets in the inventory.

If the deceased person’s entire estate is in Scotland, you need confirmation. If, however, they have assets spread internationally, you may need both confirmation and probate.

A Bond of Caution is a form of Financial Guarantee that is sometimes required in Scotland before permission is granted to administer a deceased’s Estate.  Bonds are very specialist with the terms of the guarantee being set by the relevant Sheriffdom.

When a person dies, anything that is owned by that person is called an estate. An estate can include money, property, shares and possessions. If the person that died owed any money such as through a mortgage or debt, this would come out of the estate. The estate is usually left to someone, or people in the will, which will also have instructions as to who will be responsible for dealing with the estate, also known as an Executor. 

From start to end, you should expect the probate process to be completed in around 6-12 months. That’s counted from the date the person passes away to the estate being fully distributed. 

An executor must investigate the extent of the assets and liabilities in the estate and thereafter apply for Confirmation of the estate. This is a process which usually involves applying to court and on larger estates, making tax returns to HMRC.

When Confirmation has been granted by court an executor of wills duties is to in-gathers assets and pays off debts and taxes due by the estate and distributes the estate according to the deceased’s Will or the law of Scotland where there is no valid will.

Additional executor of a will duties include:

• Creating an inventory of the estate
• Working out the amount of inheritance tax due and arranging payment
• Opening a bank account on behalf of the estate
• Finding out details of money owed to the estate
• Finding out details of money owed by the person who has died
• Sharing out the estate, as set out in the will or according to the rules of intestacy.

If the deceased has died without a will or the named executor is not willing to take part, then a petition to court will normally be required to appoint an executor. Read more on probate without a will. 

In most cases, it is usually against the law to start dealing out an estate, without a letter of confirmation.

The fees for applying for confirmation can depend on the size and value of the estate as well as the number of certificates you must provide to different banks and insurance companies to enable them to release the funds. There are also additional costs such as inheritance tax and the cost of hiring a solicitor. It is best to discuss the cost on an individual basis with a solicitor. 

Executry and Probate Advice

At Neil Kilcoyne Solicitors, we are passionate about helping people in challenging circumstances, navigate the role as executor, and applying for confirmation and probate. We’ll take the time to understand your unique situation and offer the best probate advice you can receive, which is why we are one of the leading confirmation and probate solicitors in Scotland. 

In order to take instructions we must conduct an online identity check or alternatively require photographic identification from you (e.g. passport or driving licence) and proof of your residential address (e.g. a utility bill, council tax letter or bank statement). This must be dated within the last three months. These documents can be emailed to us at and will be placed on file. Our Letter of Engagement, Terms of Business and any other correspondence will continue to be issued by email or post.

At Neil Kilcoyne Solicitors, we offer a comprehensive service to help you wind up your loved one's estate

Contact our team of dedicated lawyers on our 24 hour solicitor helpline to start getting the legal assistance you’re looking for. With offices based in Glasgow in Scotland, we’re able to give you the help you need, when you need it.

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