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Confirmation Vs Probate

There are similarities between Scotland and south of the border, such as Inheritance Tax provisions, but there are also a lot of differences when it comes to handling an estate.

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.

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

In Scotland, when applying for confirmation, the Executors must prepare an inventory of all assets which form part of the deceased’s estate as well as 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 differs 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 need to identify which succession laws 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 different 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.

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