Obtaining Confirmation in Scotland is one of the essential elements of dealing with an estate when someone has died. Confirmation confers authority on the executor to ingather the estate and distribute it to the beneficiaries. Before discussing how long it takes to get Confirmation in Scotland, it is important to explain what it is. It is also appropriate to explain that the Grant of Confirmation is the Scottish equivalent of the Grant of Probate in England.
When dealing with an estate, the executor must prepare an estate inventory. The inventory will consist of a list of property, assets and investments that make up the estate. It will also contain details of the debts of the estate and any funeral expenses. Each item in the Inventory is assigned a value, and the net value of the estate is calculated by subtracting the debts of the estate and the funeral expenses from the value of the assets.
It is important that the Inventory of the Estate contains full and complete information on the extent of the estate. Any errors may require further procedures to be undertaken. The time taken depends on the information gathering aspect, where the executor must contact all debtors of the estate to establish the value of assets at the date of death. The executor must also contact all creditors of the estate to determine what amounts are due to them. Only when all this information is to hand can the Inventory be completed.
In addition to all the information gathering, before the Inventory can be presented to the Sheriff Clerk, any Inheritance Tax (IHT) must be calculated and paid (and where appropriate an IHT Return completed and submitted to HM Revenue and Customs).
Finally, the executor signs the Declaration page when the Inventory is complete, and it is then lodged in the Sheriff Court along with the original or a registered extract of the deceased’s Will (and any other testamentary writings). If there is no Will, one or more executors must be appointed through the Sheriff Court before this stage is reached and the date of the appointment is included in the application for Confirmation. Where appropriate, usually in intestate cases, a Bond of Caution must be submitted with the application for Confirmation.
If Inheritance Tax is payable on the value of the estate above the available Nil-Rate allowance, payment of the amount due needs to be made before lodgment of the Inventory. HM Revenue and Customs will undertake the initial processing of the IHT Return and then issue a Letter containing an authorisation code to allow Confirmation to be applied for. This can often take 3 – 6 weeks.
The Sheriff Clerk will examine the Inventory and accompanying documents and, once these have been checked, will issue Confirmation. This entire process can take many weeks or even months to complete, depending on the extent and complexity of the estate and the particular Sheriff Court’s processing times.
When an executor is appointed to deal with an estate, either through the deceased’s Will or through a Petition to the Sheriff Court, they have the authority to deal with the deceased's estate. Generally, however, before the executor can actually sell the house, Confirmation must be granted.
In advance of Confirmation being granted, the executor can prepare for the sale and even place the property on the market and encourage offers, but any acceptance must be conditional on Confirmation being granted, and the title can only actually transfer to the buyer after Confirmation has been granted.
There is no time limit imposed to settle an estate in Scotland. If you engage a solicitor, the solicitor will take all steps necessary to wind up and ingather the estate as quickly and efficiently as possible, however, they will have to depend on the response of others with information to allow them to create the Inventory of estate. In addition, when there is Inheritance Tax to pay, HM Revenue and Customs needs to check IHT Returns to ensure they are happy with them. The executors can apply for a Clearance Letter to be issued by HMRC once all IHT matters have been completed.
In estates with large numbers or amounts of property, assets and investments, the information-gathering process can take some time. All this plays into the mix of how long it will take to settle an estate.
Creditors are afforded a period of six months within which to lodge a claim on the estate. This means it is likely that estates will not be available for distribution until after six months has elapsed since the date of death.
Dealing with an estate is time consuming and can be complex and complicated. It is important to deal with the estate properly, and most people will instruct a solicitor unless the estate is very straightforward. If you do decide to instruct a solicitor to deal with the estate and to get Confirmation in Scotland, it is important to instruct a solicitor who has experience in dealing with estates. We have a large team who specialise in dealing with estate administration, Inheritance Tax and obtaining Confirmation.
Carol McGovern is a Senior Executry Paralegal and deals with all aspects of executry administration and related tax matters. If you have any questions about the issues covered here, or if you wish to discuss any other legal matter, then please complete our contact form or call us on 0131 225 1200.
Murray Beith Murray Executry group has assisted many families with the legal issues arising following the death of a relative. We have specialist solicitors who deal daily with the administration of estates on behalf of executors. They will answer all your questions and take away any worry you have about the administration of the estate. They will ensure the estate is wound up properly and professionally and will guide you through the entire process. If you do need our help and support, please contact us.