Confirmation v Probate in Scotland

Amy Wardrop, Senior Solicitor, Friends Legal (part of the By Your Side team) provides expert advice on a wide range of private client matters, including guardianship orders, intervention orders, powers of attorney, preparation of wills, estate planning, trusts and executries. She is a member of Solicitors for Older People Scotland and Solicitors for the Elderly. She shares the process of what happens in Scotland with regards to Confirmation v Probate.

Whilst there are similarities between Scotland and south of the border, such as Inheritance Tax provisions, there are also a lot of differences in the way that estates are dealt with.

In Scotland, Executors apply to the Court for Confirmation. This is the document from the Court which gives the Executors the authority to administer and distribute the estate. The Confirmation document is granted to the Executor whether they are appointed by a Will (Executor Nominate) or by the Court (Executor Dative). There is no limit to the number of Executors that can be acting, and an Executor can be appointed if they are over the age of 16.

In England and Wales, there are three types of Grant: Probate, Letters of Administration, or Letters of Administration with Will annexed. Those responsible for dealing with the estate can be Executors or Administrators. There is a limit of four executors, and they must be over the age of 18.

To apply for Confirmation in Scotland, the Executors must prepare an inventory of all assets which form part of the deceased’s estate, and the value of each asset. The Executors require to sign a declaration that the inventory being submitted is a full and complete inventory. When Confirmation is granted, the inventory becomes a public document.

This is in contrast to England and Wales where the only public information is the total gross and net values of the estate.

Whilst Confirmation is recognised in England and Wales, and a Grant of Probate is recognised in Scotland, those instructed will need to identify which succession laws will apply to the estate. This will also be particularly relevant in respect of potential claims which could be made against the estate.

Difference in claims against the estate

In England and Wales, the provisions of the Inheritance (Provision for Family and Dependents) Act 1975 allows the Court to alter the distribution of the estate of a deceased person to any

  • spouse/ civil partner;
  • former spouse/ civil partner;
  • individual who was living with the deceased as spouse or civil partner for two years prior to the death;
  • child;
  • person who was treated as a child by the deceased;
  • other person who was being maintained by the deceased.

if the Will or intestacy rules fail to make “reasonable financial provision”.

A spouse/ civil partner can claim for financial provision that is reasonable in all the circumstances – anyone else can claim reasonable financial provision which is required for their maintenance.

The decision is at the discretion of the trial judge and there are a wide range of factors that the Court can take into consideration.

This is in contrast to the position in Scotland.

In Scotland, if there is a valid Will in place, families are limited in the claims they can make against an estate. It is possible for certain individuals, such as a spouse or children, to claim Legal Rights from an estate, even if there is a Will in place.

Those who can claim Legal Rights are restricted to:

  • A spouse or civil partner (but excluding any partner the deceased may have been living with). This includes any estranged or separated spouse or civil partner, unless there is a separation agreement in which they have discharged any rights to the estate;
  • Children, including adopted children. This does not extend to step-children;
  • If any child has predeceased the deceased, any children they may have (i.e. their grandchildren) can claim their deceased parent’s share.

It is important to remember that Legal Rights can be claimed if there is a Will, but the individual cannot claim both Legal Rights and their entitlement in terms of the Will.

Legal Rights can be claimed from the estate at any time within 20 years from the date of death. The Executor is obliged to advise all who might have a claim to Legal Rights of their entitlement. It is for the individual to consider if they wish to make the Legal Rights claim, or to discharge their Legal Rights claim.

If you have any Scottish queries, or generate any Scottish Customers, please do not hesitate to contact By Your Side from Friends Legal – Your Scottish Probate Partner.

  • Full Scottish Probate Services
  • Fixed Fee Services
  • Measurable Service Levels
  • Bespoke reporting
  • We offer affordable and transparent fixed-fee pricing, which we’re happy for you to compare with other Scottish solicitors.

This article was submitted to be published by Friends Legal as part of their advertising agreement with Today’s Wills & Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills & Probate.

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