Do I need a solicitor to apply for Confirmation in Scotland

Angus discusses when you will require a solicitor to apply for Confirmation in Scotland

If I have been appointed executor, do I need a solicitor to apply for Confirmation in Scotland?

In any estate, the executors are the people responsible for administration. In Scotland, the decree authorising an executor to legally administer an estate is known as ‘Confirmation’. The right of administration does not exist before Confirmation. 

There is no legal requirement to engage a solicitor when applying for Confirmation. However, there are cases where using a solicitor is recommended.

See our previous article describing the role of the executor and what is involved in applying for Confirmation HERE.

Small estate

Where the total value of the deceased’s estate (prior to deduction of any debts, such as funeral expenses, bills, and mortgage balance) is £36,000 or less, it is called a “small estate”, and the Sheriff Clerk can assist an executor without legal representation in completing the relevant forms required to obtain Confirmation.

Large estate

A large estate is an estate where the total value of the deceased’s money and property is over £36,000. The Scottish Courts and Tribunals website states the Sheriff clerk is prohibited from assisting applicants for Confirmation to large estates. Dealing with a large estate, particularly one where a house or other property is concerned, is often complicated and seeking legal advice early is recommended.

Where there is no Will

Where the deceased did not leave a Will, and the value of the estate is such that Confirmation is required, an executor will need to be appointed as the executor-dative by the Sheriff Court. Also, a special insurance bond called a “Bond of Caution” will be needed. A Bond of Caution is necessary for most estates where no executor has been appointed by the Will.

Where a property is held with a Survivorship Destination

In Scotland, ownership can be held with a Survivorship Destination or in “pro indiviso” shares. Where title is held pro indiviso, the deceased’s share of the property would form part of their estate and Confirmation would be required to transfer their half share to the beneficiary(ies).

Where a title contains a Survivorship Destination, each party’s share will pass automatically to the survivor immediately upon death, without the need for any further legal work.

In our experience, if the title deeds are not properly checked headaches can occur down the line. For instance, upon the death of the second joint owner, the first deceased joint owner’s share can still be in their name and Confirmation for both estates will be required.

Inheritance tax

It is critical that executors pay the correct amount of inheritance tax, as they may be held personally liable. Whether a tax-free limit or relief is available depends on a few factors, which can be safely navigated by a solicitor.

Personal liability of the executor

The general principle is that neither the executor nor the beneficiaries have any personal liability for the debts of the deceased. However, when it comes to the estate, the executor is legally responsible and can incur personal liability through fault. The remedies for correcting errors are few and potentially expensive.

Our team at Middleton Ross can help you carry out your role as an executor, and explain the procedures and costs involved in winding up an estate. To discuss your requirements further, contact us today and one of our team will be happy to assist you.