Probate in Scotland
Our solicitors can support executors and family members throughout the process of winding up an estate and Probate (Confirmation), providing the knowledge and expertise needed to make sure everything is dealt with correctly and as efficiently as possible.
Executry is the legal term that is to describe the process that is followed after someone has passed away. It is usually undertaken by an executor who is named in a will.
Dealing with the estate of someone who has died can be difficult at any time, but having to manage financial and legal matters while grieving can make the process particularly challenging. There may be property to deal with, accounts to close, organisations to contact, debts to settle and assets to distribute, often at a time when you would rather be focusing on your family and close friends.
Not every estate requires the same level of legal support. Some estates are relatively straightforward, while others involve property, investments, multiple beneficiaries or more complex family or financial arrangements.
In Scotland, the executor may need to obtain Confirmation (Probate) from the court. Confirmation is the legal document that gives an executor authority to collect and distribute the deceased person's assets. Whether it is required will depend on the circumstances of the estate and the organisations holding the assets.
Even where an estate is relatively small or there is no Inheritance Tax to pay, Confirmation may still be required as banks and other financial institutions have their own thresholds for releasing funds. Confirmation will also normally be needed where property was owned solely by the person who died.
The position can also be more complicated if someone dies without leaving a valid will. Our solicitors can explain what needs to happen, who is entitled to deal with the estate and how the rules of intestate succession affect the distribution of assets.
Probate Solicitors
We can guide executors and family members through the entire process or provide advice and assistance with particular aspects of winding up an estate.
This may include identifying and valuing assets, applying for Confirmation, dealing with Inheritance Tax requirements, settling debts and liabilities, transferring or selling assets and distributing the estate to beneficiaries. There may also be individual matters requiring legal assistance, such as selling a property, dealing with shares or resolving questions about the terms of a will.
Getting professional advice can provide reassurance that the correct procedures are being followed. It can also reduce the administrative burden on an executor, helping to avoid unnecessary delays and allowing the estate to be wound up as efficiently as circumstances permit.
Executors are responsible for the decisions they make when administering an estate and can potentially be held personally liable for errors, misrepresentation or the incorrect distribution of assets.
Beneficiaries may also take legal action where an executor fails to carry out their duties properly. Having an experienced solicitor to guide you through the process can therefore be valuable, particularly where the estate or the executor's responsibilities are more complex.
Confirmation is the Scottish procedure to make the appointment of an executor more formal.
It involves the sheriff court checking the inventory of estate and the information presented to court by the executor or solicitor on the deceased and the death, and granting a certificate that requires banks and any person or body holding the money belonging to the deceased to hand it over to the executor.
For convenience, the bank can choose to settle the money due to the estate on the word of the executor, with appropriate ID and paperwork done.
However, this will only be if the amounts are small, and more likely if there is a will. If the bank chooses to insist on Confirmation, it is permitted to do so. Banks are cautious in case there are perhaps other family with competing claims on the money, or if a person misrepresents facts or relationships to it, or if there is a subsequent will that the person claiming the money has not mentioned.
To appoint an Executor if there is no Will requires an application being made to the Court. The procedure will vary depending upon whether there is assistance from a solicitor.