Probate, or confirmation as it’s known in Scotland, is a legal document granting the executor of someone’s will to begin the process of administering that person’s estate after they pass away.
Although they achieve the same aim, probate and confirmation have key differences.
Probate 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 regardless of whether the deceased died with a will, whilst probate is only granted if a valid will was made. Also, the rules of intestate (what happens to someone’s estate if they die without making a will) are different in Scotland to England and Wales. If someone dies in intestate in Scotland the executors might need to obtain a bond of caution, a document that is not necessary in England and Wales
In Scotland there’s no set limit to the number of people who can apply for confirmation for a certain estate, whereas in England and Wales a maximum of four executors can apply for probate
Some grants can have a time limit on them in England and Wales, but this is not the case for confirmation
There are also slightly different rules with executors in Scotland, such as:
Whilst in England and Wales you must be 18 or over to act as an executor, in Scotland the minimum age is 16
In England and Wales the executors can instead be called administrators depending on which type of grant is obtained, whilst 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 onto 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 then it’s recommended 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 will also be useful in working out which of the two estate sizes you’re dealing with. Remember to include everything, including money, houses, land, shares and the interest in 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 C5(SE) if the estate value is under £30,000
Form C5 if no inheritance tax is due and form IHT400 if it is
Your solicitor will be able to advise you on the application process and help you obtain and fill out 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 the necessary solicitor’s fees.
Confirmation might seem like a complicated process, but seeking legal advice will give you much-needed support and help you to navigate the process from start to finish.