If someone you know has died and did not create a Will during their lifetime, you may need to obtain something known as “Confirmation” to be able to release their assets – e.g. bank accounts, investments, etc. Confirmation in Scotland without a Will can be quite complicated, and involves a number of additional steps required by the Scottish Courts before Confirmation can be granted.

We deal with obtaining Confirmation in Scotland without a Will on a daily basis, so contact us today if you would like some free advice now.

Alternatively, read on for helpful information on the processes involved in obtaining Confirmation in Scotland.

Dealing with the estate

Anyone who creates a Will is usually providing instructions about how they would like their money, property and possessions to be handled after they pass away. In Scotland, for example, you must name at least one person – called an executor – who you would like to be in charge of dealing with such assets.

However, not everyone who passes away does so leaving a valid Will. When someone dies under these circumstances, the legal steps that are required to deal with the individual’s estate become more complicated. One of the processes impacted is something called Confirmation. This article will focus on Confirmation in Scotland without a Will.

What is Confirmation?

When someone dies, many of their assets (i.e. bank accounts, insurance policies, etc.) will be frozen once the bank/building society has been given the Death Certificate – effectively stopping all Direct Debits, Standing Orders and payments out of the account. This means that an executor cannot immediately withdraw or transfer the deceased’s funds and begin the administration of the estate. To be able to access the funds in dull, permission must be granted by the Sheriff Court. This is known as ‘Confirmation’.

Confirmation is the legal document that gives executors the authority to administer the deceased’s land, property, money and possessions (their “estate”). By granting Confirmation, the Court is confirming that the executor has the right to distribute the estate in accordance with the laws of Scotland.

An application for Confirmation is submitted to the Sheriff Court with a full list of the deceased’s assets at the time of death. This list is called an Inventory and it must include at least one asset in Scotland for Confirmation to be granted. Confirmation in Scotland without a Will must include a complete and comprehensive Inventory listing the date of death values for each and every asset.

There are two types of Confirmation: one for small estates and one for large estates. A small estate, under Scots law, is one where the deceased person’s total assets are valued at £36,000 or less. A large estate is one where the value is higher than this. The procedures and forms are different depending on the type of estate.

What if the deceased didn’t leave a Will?

Confirmation in Scotland without a Will is a different process to those estates where the deceased did, in fact, make a Will.

Where the deceased does not leave a Will, the estate is called ‘intestate’. If an individual has died intestate, this means that no-one has been named and given the task of handling the deceased’s assets. Therefore, as there is no executor, one must be appointed. To do this, an application is made to the Sheriff Court. Executors appointed in this way are called executors-dative.

Any person who will benefit from the intestate estate can be appointed as executor-dative. However, in circumstances where there is competition to this role, there is a specified and preferred order set down by the Scottish Courts:

1. the surviving spouse or civil partner
2. next of kin
3. the deceased’s creditors
4. anyone entitled to a legacy from the estate
5. the procurator fiscal

In the majority of intestacy cases, an executor would then have to obtain something called a ‘Bond of Caution’ (pronounced kay-shun) before the Sheriff Clerk will grant Confirmation.

What is a Bond of Caution?

A Bond of Caution is a specific type of insurance which protects the beneficiaries of an estate. This protection materialises in two ways; firstly, against an individual obtaining Confirmation where they are not permitted to do so and, secondly, against an executor failing to administer the estate in accordance with the rules of intestacy.

A Bond of Caution is required in the majority of intestacy cases, however, there are a couple of exceptions. Provisions of the Succession (Scotland) Act 2016 altered some of the rules surrounding Bonds of Caution. This includes adding civil partners to the exception that – when someone has died intestate, and their entire estate is to be inherited by their spouse or civil partner, caution is not required. Furthermore, a Bond of Caution is no longer necessary for small estates.

Obtaining a Bond of Caution can be only be done through a Scottish solicitor. We can help you obtain the Bond of Caution, as well as Confirmation.

We have the experience you need

If you find yourself looking-after the estate of someone who has died without a Will in Scotland, contact us today on 0141 628 5544, email info@weirlaw.co.uk or Make An Online Enquiry and we will give you information and assistance to determine the rightful executor(s), beneficiaries, as well as to deal with obtaining the Bond of Caution and settling the estate in a comprehensive and transparent manner.