Executry & Probate Frequently Asked Questions

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.