What's involved in Scotland
There are some considerable differences between applying for ‘confirmation’ in Scotland and applying for ‘probate’ in England, Wales and Northern Ireland.
This is because Scotland has a separate judicial system and the differences between confirmation and probate are matters of law, upheld by the Scottish Courts.
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Executors must have their appointment confirmed by the Scottish Courts before they can begin the process of administering the estate.
An executor named in the Will is known as an executor-nominate. Unless an executor has chosen to decline office, confirmation is in favour of all the nominated executors.
Where there is no Will, or the nominated executor is unwilling or unable to accept office, or already deceased, then an application should be made to the Sheriff Court for the appointment of an executor, known as an executor-dative.
If there is no Will, or the Will fails to appoint an executor, a petition for the appointment of an executor-dative is lodged with the Sheriff Court according to the following order of priority:
- Anyone who is entitled to inherit all or part of the estate
- Next of kin
- The creditors
- Anyone entitled to a legacy from the estate, i.e. a specific legatee
- The procurator fiscal
If the deceased did not make a valid Will, the order of priority remains the same, except that the next of kin, or a surviving spouse or civil partner would have preference.
In the case of intestacy the executor-dative must obtain a ‘bond of caution’ from an insurance company.
This is a guarantee made by the insurance company that the executor will distribute the estate in accordance with the rules of intestacy. It must be lodged by the Sheriff Court along with the inventory form C1.
If the surviving spouse's prior rights under Sections 8 and 9(2) of the Succession (Scotland) Act 1964 exhaust the estate, then there is no needto obtain caution. However, if the estate is not exhausted and there are surviving issue, brothers or sisters, or parents, then caution would be required as the surviving spouse would receive their prior and legal rights. The remainder of the estate would pass firstly to surviving issue (as legal rights and free estate) and if none then to surviving siblings and/or parents (as free estate).
After funeral expenses, debts and liabilities have been paid, The Succession (Scotland) Act 1964 determines the distribution of an estate in the event of intestacy or partial intestacy.
There are three categories:
1. Prior rights
A surviving spouse or civil partner has a right to;
- The deceased’s dwelling house (or a share) up to a value of £325,000.
- A share of the furniture, furnishings etc up to a value of £24,000.
- Cash up to a value of £75,000, if there are no surviving children or descendants of children or £42,000 if the deceased was survived by issue.
2. Legal rights
If the estate has not been exhausted by the satisfaction of the surviving spouse or civil partner’s prior rights, then the surviving spouse or civil partner is also entitled to claim legal rights in the estate.
Legal rights only apply to the net moveable estate (money, investments and possessions) and do not extend to the heritable property (land or buildings).
A surviving spouse or civil partner can claim a one half share of the net moveable estate if there are no surviving children; but only a one third share if there are surviving children.
Likewise, the surviving children can claim a one half share of the net moveable estate between them, if there is no surviving spouse or civil partner; or a one third share if there is a surviving spouse or civil partner.
The surviving children’s share is known as legitim.
3. The free estate
This is the remainder of the estate after funeral expenses, debts and prior and legal rights have been settled.
The order of those entitled is as follows:
- A surviving spouse or civil partner with no descendants, no collateral (brothers and sisters of the deceased or of an ancestor of the deceased) or issue of same, and neither parent surviving – the remainder passes to the surviving spouse or civil partner.
- A surviving spouse or civil partner and issue (children) – the remainder passes to the children.
- A surviving spouse or civil partner and issue (grandchildren) of the predeceasing issue (children) – the remainder passes to the grandchildren.
- Issue (children) only – the remainder passes to each child in equal shares.
- Issue (children) and issue of predeceasing issue (grandchildren) – the remainder passes equally to each child and grandchild per stirpes (see note below).
- Issue of predeceasing issue (grandchildren) – the remainder passes to the grandchildren per capita (see note below).
- Surviving spouse or civil partner’s father and/or mother, and brothers and sisters – the remainder passes equally to the parents or to the survivor and half to the brothers and sisters per capita.
The list continues - and is set out in detail in the Succession (Scotland Act) 1964.
- Per stirpes means that division is initially made at the level of the generation of the family to which the beneficiary belongs, and thereafter subdivided per head.
- Per capita means equally per head.
The deceased’s estate is referred to as either heritable property or moveable estate.
- Heritable property is land or buildings.
- Moveable estate is money, investments and possessions.
Heritable property may be owned solely, jointly or the title may contain a survivorship clause.
If the property is owned solely, or jointly the executor is required to obtain confirmation to be able to transfer the title to a beneficiary.
If there is a survivorship clause the title of the property automatically passes to the surviving owner.
The title of heritable property can be transferred to a beneficiary by means of a disposition, or by attaching a signed document to the confirmation (or to a certificate of confirmation).
Confirmation (the Scottish equivalent of ‘probate’) is obtained by submitting an inventory form C1 together with the necessary paperwork to the Sheriff Court.
Forms C1 and C5
These forms are available at www.hmrc.gov.uk or free of charge from the Sheriff Clerk’s Office at the Sheriff Court.
The inventory form C1 fulfils the same function as the PA1 and the IHT205 forms in England and Wales.
The C5 (Return of estate information) must be completed if the deceased died after 6 April 2004. The C5 is used where the deceased was domiciled in the United Kingdom at the date of death and the gross value of the estate for Inheritance Tax is less that the excepted estate limit; or is less than £1,000,000 and after the deduction of liabilities and spouse, civil partner or charity exemption the estate is below the Inheritance Tax nil rate band threshold.
In Scotland the C1 and C5 forms need only be signed by one of the nominated executors.
If an omission has been made, or error in the description or calculation of the returned estate, amends can be made by completing a corrective inventory forms C4 and C4(S).
The same rules apply in Scotland as in England and Wales with regard to the form IHT400. So this form will have to be completed unless the estate is either exempt or small.
Estates valued at less than £30,000
If the total amount of the deceased’s gross estate is £30,000 or less, this is known as a small estate.
The Sheriff Clerk’s staff will assist with the completion of the forms C1 and C5.
There is a court fee for the provision of confirmation to the estate but there is no additional fee charged for the Sheriff Clerk’s staffs’ assistance.
If the deceased left a Will, the executor named in the Will should attend the Sheriff Court; the Will may appoint more than one executor but only one need attend.
All executors named in the Will, subject to their being willing and able to accept office, will be confirmed.
If there is no Will (intestacy) the executor would normally be the surviving spouse, civil partner or next of kin.
For intestate estates of this size it is not necessary to petition the court in order for the appointment of an executor-dative though a bond of caution is still required.
The person applying for confirmation should attend the Sheriff Court for an interview with proof of their identity and full details of the deceased’s estate.
The Court will sometimes ask for two witnesses to swear an oath regarding the identity of the person applying for confirmation.
For further details visit www.scotcourts.gov.uk/library/civil/estates
Estates valued at over £30,000
Forms C1 and C5 need to be completed.
The completed forms C1 and C5 should be taken or sent to the Sheriff Court with the Will (where there is one) or a completed bond of caution (on intestacy) plus a cheque for the court fee.
Estates valued at over £325,000
A form C1 and a form IHT400 need to be completed unless a form C5 can be used (see above) and sent, together with the required tax (if any), to HMRC Inheritance Tax.
HMRC Inheritance Tax will return the form C1 with their receipt stamped on it.
When the receipted C1 from HMRC Inheritance Tax is received, it is taken or sent to the Sheriff Court together with the Will (if there is one), or a bond of caution (on intestacy), and a cheque for the required fee.
If there is Inheritance Tax to pay, it must be calculated at this stage and paid to ‘Inland Revenue’.
Form C1 and form IHT400 must be sent, together with your payment, to HMRC Inheritance Tax in Edinburgh.
Further assessment will be made, and a demand for more tax, or a refund, will follow at a later date.