What is Probate in Scotland? Is Probate a Scottish or English term? What is the difference between the legal systems of Scotland and England when it comes to dealing with a deceased person’s estate?
All these questions are more will be answered in this article, so read on or contact us today if you would rather speak with one of our solicitors to discuss this in more detail.
Probate or Confirmation?
The legal systems of Scotland and England each boast unique traditions and interpretations, which often lead to differing approaches when dealing with common issues. One such issue is the administration of the estate of a person who has died.
When an individual passes-away, the process of handling their assets, often referred to as ‘probate’ in many regions (including England and Wales) and known as ‘Confirmation‘ in Scotland, becomes a necessary step. The exact requirements for probate or Confirmation depend on the type and value of the deceased’s assets.
In England, the term ‘probate’ is used where the deceased person made a Will; in Scotland, Confirmation is the term used – regardless of whether a Will is present or not.
Which Court issues Probate or Confirmation?
Probate is a legal decree issued by the High Court. Since 1971, the Family Division of the High Court has been responsible for issuing probate. In Scotland, the Confirmation process is overseen by the Commissary Department of the local Sheriff Court – or Edinburgh Sheriff Court if the deceased was not ordinarily resident in Scotland at the time of his or her death.
What does it do?
Confirmation serves as a legally-binding document issued by the Sheriff Court, granting authority to the executors to access and manage the deceased person’s money and property. This includes the ability to close bank accounts and facilitate the sale or transfer of investments and property. Typically, Confirmation is obtained from the Sheriff Court located nearest to the deceased person’s place of residence at the time of their death.
Differences between Scotland and England
There are three forms of this post-death document in England and Wales: Probate, Letters of Administration or Letters of Administration with Will annexed. That is why the person(s) dealing with the estate can be Executors or Administrators, all of whom must be over the age of eighteen.
In Scotland, we have only Confirmation, which can be applied for whether or not there exists a Will, and an executor can be appointed if they are over the age of sixteen.
Different country, different forms
When Scottish executors seek Confirmation, typically through the submission of a form known as Form C1, they are required to provide a comprehensive inventory of the deceased’s assets located in the UK, along with their values as at the date of death. Once lodged with the Sheriff Court, this information, along with the Will, becomes a publicly-accessible document – meaning that anyone can order a copy of both documents for around £26.00
In contrast, in England, the only public information available relates to the overall value of the estate. In England and Wales, the equivalent forms to the Scottish C1 are PA1 and IHT205.
Where a deceased dies without making a Will in Scotland (known as “intestacy”), the executors may have to obtain a bond of caution, which is a type of insurance policy, before confirmation may be obtained. There is no such requirement in England and Wales.
In Scotland, Confirmation is granted by the Sheriff Court and comprises a copy of Form C1 along with the Court’s seal. Additional Certificates of Confirmation are issued by the court to allow executors to simultaneously notify all asset-holders of their authority to receive the deceased’s assets. Unlike the office copies of probate issued in England, the certificates in Scotland are tailored to each specific asset, providing detailed descriptions and values as noted in the Form C1.
Public declaration by the executor
In England, the process of probate serves as a public declaration indicating that the individuals named as executors in a Will are authorised to manage the assets within the estate. Whereas Scottish executors assume the role of the deceased individual and possess exclusive control over the management of the deceased person’s assets, including the enforcement of their rights, such as collecting owed debts.
When applying for Probate in England, executors are required to sign a declaration affirming their intention to keep full details of the estate’s assets. However, enforcing compliance with this requirement can be challenging, especially in estates where no tax liability exists.
This challenge becomes particularly evident when additional assets are discovered after the grant of representation is issued, or when previously declared assets are found to have been undervalued. Organisations receiving office copy Probate documents have no means of discerning how the gross estate value was determined or, specifically, what value was attributed to assets under their control.
In contrast, Scotland employs a different approach. In most cases where additional estate assets are uncovered, a supplementary Confirmation referred to as an “eik” is required to provide details of the newly-discovered assets. This eik is sent to the Sheriff Court and HM Revenue and Customs to ensure the estate values are updated and disclosed to the relevant authorities.
Get the right legal advice now
It is advisable to consult with a solicitor experienced in Scottish succession law to guide you through the process, especially if the estate is complex or if there are any potential issues that may arise during the confirmation process. For free advice at this stage regarding Confirmation (Probate) in Scotland, contact us today on 0141 628 5544, email info@weirlaw.co.uk or Make An Online Enquiry