Probate, or confirmation as it’s known in Scotland, is a legal document granting the executor of someone’s will the authority to begin the process of administering that person’s estate after they pass away.
Although they achieve the same aim, probate and confirmation have some key differences.
For example:
- Confirmation is granted by the commissary department of the local sheriff court or by the Edinburgh Sheriff Court, while probate is a High Court order.
- If necessary, confirmation can be granted whether or not the deceased left a valid will, while probate is only granted if there is a valid will. The rules of intestacy are also different in Scotland compared with England and Wales. If someone dies intestate in Scotland, the executors may need to obtain a bond of caution, which is not required in England and Wales.
- In Scotland, there is no set limit to the number of people who can apply for confirmation for an estate, whereas in England and Wales a maximum of four executors can apply for probate.
- Some grants in England and Wales can have a time limit, but this is not the case for confirmation.
There are also slightly different rules for executors in Scotland, such as:
- In England and Wales, you must be 18 or over to act as an executor, while in Scotland the minimum age is 16.
- In England and Wales, executors can instead be called administrators depending on which type of grant is obtained, while in Scotland they are usually just referred to as executors.
Do I apply for confirmation or probate?
If the deceased person owned at least one item of property or a sum of money in Scotland, you can apply for confirmation. If not, you’ll need to apply for probate. You will not need to apply for both.
Note that obtaining confirmation is not necessary if:
- The estate is valued at under £5,000.
- The deceased owned everything jointly with another living person, and the estate automatically passed to them.
Are there different types of confirmation?
Yes, there are two different types, and the type you need to apply for depends on the value of the estate. An estate with a total value of £36,000 or less is classed as a small estate, and anything above that is counted as a large estate. The two require slightly different processes. If you’re trying to administer a small estate, you can contact your local sheriff court, but if it’s a large estate, it’s recommended that you seek legal advice.
Read more information and guidance for dealing with large estates.
How do I apply for confirmation?
If you’re the executor for someone’s will and the above applies to the estate, you’ll need to apply for confirmation in order to administer and distribute their estate.
The first thing you’ll need to do is provide a complete list of all the deceased’s property at the time of their death. This is called an inventory, and it will also help you work out which of the two estate sizes you’re dealing with. Remember to include everything, including money, houses, land, shares, and interest on bank accounts up until the time of death. It may take time to value everything, but it is a vital part of the process.
Once you’ve done this, you’ll need to apply to the sheriff court with:
- Form C1
- Form C5(SE) if the estate value is under £30,000
- Form C5 if no inheritance tax is due, or form IHT400 if it is
Your solicitor will be able to advise you on the application process and help you obtain and complete the forms.
How much will it cost to apply for confirmation?
The fee largely depends on the value and complexity of the estate. The Sheriff Court Fees page has information on the current fees, but note that these do not include any solicitor’s fees.
Confirmation might seem like a complicated process, but seeking legal advice can give you much-needed support and help you navigate the process from start to finish.
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