Wills, Probate and Inheritance


When someone dies, you’ll need to get the legal right to deal with their property, money and possessions (their ‘estate’)

 

If the person left a will

 

You can apply for a grant of representation (This process is called ‘confirmation’ in Scotland) if you’re the ‘executor’ of the will – the person named to deal with the estate.

 

If the person didn’t leave a will

 

An ‘administrator’ is the person who deals with the estate if there’s no will.

You can usually apply for a grant of representation to be the administrator of the estate if you’re the person’s next of kin, eg their spouse (or civil partner) or child.

You can apply if you’d separated from the person but you were still married or in a civil partnership when they died.

You can’t apply for a grant of representation if you’re the partner of the person but weren’t their husband, wife or civil partner when they died. You’re also not automatically entitled to any of your partner’s estate.

Intestacy – who inherits if someone dies without a will?

Check on GOV.UK to see who inherits the estate if there’s no will

 

scot flagDealing with a Deceased’s Estate in Scotland

The process is called ‘confirmation’

 

Applying for confirmation

 

When dealing with a deceased’s estate, you may have been told that you need to obtain ‘confirmation’ before any money and other property, belonging to the deceased, can be released. It is often a bank, building society or insurance company that will ask for this.

You may also be asked for ‘confirmation’ by the Jobcentre Plus (DWP) if the deceased has an outstanding application to the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 or Diffuse Mesothelioma Scheme 2008

‘Confirmation’ is a legal document from the court giving the executor(s) authority to uplift any money or other property belonging to a deceased person from the holder (such as the bank), and to administer and distribute it according to law. An application is lodged with the sheriff court.

This is only one part of the process in dealing with a deceased’s estate, and is the part that the court is involved in. You will find some useful information on other parts of the process in the document ‘What to do after a death in Scotland’ (11th Edition, 2013 .pdf)

When applying for confirmation, an executor must provide a list of all the deceased’s property at the time of death. The list – called an inventory – might include money, houses, land and shares.

Confirmation is possible only if the inventory includes at least one item of money or other property in Scotland.

 

Small Estate or Large Estate

 

There are two types of confirmation, for small estates and for large estates. A ‘small estate’ is an estate where the total value of the deceased’s money and property is £36000 or less. A ‘large estate’ is an estate where the total value is above this. In calculating the total value, you should not deduct any debts, such as funeral expenses, gas or electricity bills, balance of mortgage, owed by the deceased.

The values of bank accounts must also include interest to date of death.

The procedure, forms and fees are different depending on what type of estate the application relates to. If the estate is a small estate, then the sheriff clerk will be able to help you prepare the ‘inventory’, and you can contact your local sheriff court to arrange an appointment.

If the estate is a large estate, it is  recommended that you seek legal advice.

 

Presence of a will

 

The procedures are also different depending on whether or not the deceased left a will. If they did not leave a will, you might hear the estate being referred to as ‘intestate’; if they did leave a will, you might hear the estate being referred to as ‘testate’. If there was a will left and it complies with all of the legal requirements in Scotland, then the information in relation to small and large estates will apply.

If they did not leave a will and it is a small estate, then you may have to get a bond of caution before you apply for confirmation of the estate, further information on this can be received from the sheriff clerk. If it is a large estate, and there is no will, there is an additional step in the procedure. You would need to apply to be appointed executor, using the dative petition procedure. It is recommended that you seek legal advice in relation to this.

More information: www.scotcourts.gov.uk/taking-action/dealing-with-a-deceased’s-estate-in-scotland

 

eng & walesEngland and Wales

 

You may be able to apply for a’grant of representation’ – known as ‘probate’.

You can apply yourself or use a solicitor.

Most cases follow the same basic process.

  1. Check if there’s a will – this normally states who sorts out the estate. If there’s no will the next of kin can apply
  2. Apply to get a ‘grant of representation’ – this gives you the legal right to access things like the person’s bank account.
  3. Pay any Inheritance Tax that’s due.
  4. Collect the estate’s assets, eg money from the sale of the person’s property.
  5. Pay any debts, eg unpaid utilities bills.
  6. Distribute the estate – this means giving any property, money or possessions to the people entitled to it (‘beneficiaries’).

A grant of representation can sometimes be known as a ‘grant of probate’, ‘letters of administration’ or ‘letters of administration with a will’.

 

When a grant of representation may not be needed

 

You don’t normally need a grant if the estate either:

• passes to the surviving spouse/civil partner because it was held in joint names, eg a savings account
• doesn’t include land, property or shares

You should contact the organisation holding the money, eg the bank or building society. They may ask for proof of death, eg the death certificate after the death has been registered.

Each financial institution has its own rules – you may still need to apply for a grant

More information: www.gov.uk/wills-probate-inheritance

Contains public sector information licensed under the Open Government Licence v3.0.

Last reviewed: February 2017