Unfortunately, most people are likely to have to deal with the death of a loved one at some time in their lives. The last thing that people want at a time of bereavement is the bureaucracy involved in dealing with the winding up of a deceased person’s estate.
The terms Confirmation, Grant of Probate and Grant of Letters of Administration, will be familiar to a great many people but it is important to be aware of the legal definition of each of these terms as the majority of us will have to deal with a bereavement at some point in our lives. Generally speaking, before any estate situated within the United Kingdom can be uplifted, it is necessary to obtain an official document called a Confirmation, a Grant of Probate or Letters of Administration. Without this document, the estate cannot be distributed to beneficiaries.
In what circumstances are each of these grants appropriate within the United Kingdom?
In Scotland, Confirmation must be obtained. For an estate to be administered under Scots Law, this is done by way of a written application to the Sheriff Court - subject to a few exceptions. Accordingly, where a deceased person has died whilst domiciled in Scotland, the law of Scotland will govern the succession to his moveable estate wherever this is situated and also to any heritable estate (houses, buildings or land) held by the deceased person in Scotland. In these circumstances, Confirmation will be granted to the deceased person’s estate in Scotland, England, Wales and Northern Ireland.
In a case where a deceased person has died whilst domiciled outwith Scotland, the law of Scotland will still govern the succession to any heritable estate (houses, buildings or land) owned by the deceased and located in Scotland.
Generally speaking, Confirmation is the authority given by the Court in Scotland for the executors to gather together the deceased’s estate and then to distribute it. The executor is appointed either by being named in a Will, or, where no Will has been left, by appointment by the Court. The executor then distributes the estate either according to the wishes contained in the Will, or, if no Will has been left, in accordance with the law of succession of Scotland.
Confirmation is the Scottish equivalent of Probate and Letters of Administration in England, Wales and Northern Ireland.
Probate and Letters of Administration are normally granted when a person dies whilst domiciled in England, Wales or Northern Ireland. Normally, any such grant will also cover estate situated in Scotland.
A Grant of Probate is the authority given by the Probate Registry for the executors named in a Will to gather together the deceased’s estate and then to distribute it in accordance with the Will. A Grant of Letters of Administration on the other hand is obtained where the deceased died without leaving a Will.
A large number of executry cases are complex and can take some time to complete. The level of complexity will depend on the items of estate and the terms of any Will. Fortunately, numerous cases are relatively straightforward consisting of a few investments, some insurance, a bank account and possibly a house. Some Wills contain complicated instructions but most Wills contain relatively few clauses containing legacies to a small number of people or organisations.
Most executors are able to distribute the estate of a deceased person in accordance with the wishes of the deceased contained in the Will. Nevertheless, difficulties often arise in cases where no will has been left and the estate then requires to be distributed in accordance with the law of intestate succession. Legal advice should be sought by the executor in such situations.
In addition, whilst most executors can gather in and distribute the deceased’s estate, the process of completing an Inventory of Estate, obtaining the appropriate Inheritance Tax forms and making application for Confirmation is sometimes not entirely straightforward and legal advice is often beneficial.
In some cases, the deceased’s estate may fall within the limits set down for the Small Estates Procedure.
It may not be necessary to employ a Solicitor when dealing with applications for Confirmation to Small Estates as the procedure for Small Estates has been simplified over the years. This procedure is not appropriate when dealing with contentious cases or where there is an attack on the validity of the Will.
Frequently asked questions:-
• What is Confirmation?
Confirmation means the issue of a legal document which authorises the executor to carry out the wishes of the deceased in accordance with the terms of the Will or, where no Will has been left, to distribute the estate in accordance with the Law of Succession. It also means that the executor is obliged to undertake certain actions required by law.
• Why do I need Confirmation?
Quite simply most organisations such as banks, building societies or the like will not permit the assets of a deceased person to be dealt with unless the person wishing to do so can prove that he or she has the appropriate authority, ie, Confirmation. If the deceased person was the owner of land, a Certificate of Confirmation will be required to register the beneficiary as the new owner of the land in the Land Register.
• Is a grant of Confirmation always needed?
Occasionally, Confirmation is not required and the bank or organisation holding the asset of the deceased person may agree to waive the need for Confirmation. This may happen when the amount of money held in a bank is small and there are no real complications. When dealing with Small Estates it is always worth contacting the bank or organisation holding the money or assets to find out whether they do require Confirmation to be sent to them. It is common for some organisations to be prepared to deal with matters without the need for Confirmation and this will avoid the expense of having to make an application to the Court. Nevertheless, if a bank or organisation insist on Confirmation being shown to them, any application for Confirmation must include ALL the assets of the deceased person when compiling the Inventory of Estate and calculating the value of the total estate for the purposes of making the application for Confirmation. The application must include the money or assets held by banks or organisations who have indicated that they do not require Confirmation.
• Who is entitled to obtain Confirmation?
The person or persons named in the Will as executors are entitled to apply for Confirmation. If no Will has been left, the spouse or, in some cases, the next of kin can apply to the court to be appointed as executor and thereafter apply for Confirmation.
There are rules governing the appointment of executors when no Will has been left and legal advice should be sought in these circumstances.
If a Will has been left but it does not name any executors, then legal advice should be sought.
It is common for a Will to name more than one executor. If this happens the executors should preferably reach an agreement as to whether they all wish to accept the appointment of executor. When dealing with larger estates or if there is an argument amongst beneficiaries, it is sometimes beneficial for the executors to deal with everything jointly.
• Do I need a Solicitor to obtain Confirmation?
It is possible to apply for and obtain Confirmation without employing a Solicitor, especially when dealing with a Small Estate (see above). Nevertheless, when dealing with larger estates, or if there is a possibility that Inheritance Tax may be payable, or if the distribution of the estate is likely to be contentious, it is desirable to seek legal advice.
When dealing with a Small Estate, the executor appointed in the Will should consult with the Sheriff Clerk at the local Sheriff Court in whose district the deceased previously lived. Assistance will be forthcoming in completing the necessary forms. If no Will exists an application for appointment as executor has to be lodged with the court.
• Is Inheritance Tax payable?
Inheritance Tax is not payable on any items of estate which pass from the deceased person to his or her spouse.
As the law stands at present (Budget March 2000), no Inheritance Tax is payable on any estate whose net value is less than £234,000. If the net value is above this figure, Inheritance Tax at the rate of 40% is likely to be payable.
If certain property or money has been transferred by the deceased person to people within a certain number of years prior to date of death, Inheritance Tax may be payable and legal advice should be sought.
• What are the responsibilities of the Executors?
The executors who are appointed (either in terms of the Will or by the Court where no Will has been left) are under a duty to ingather the whole estate and to distribute it according to either the Will or the Law of Succession (if no Will). It has to be borne in mind that the duty to distribute the estate is subject to any legal rights which any spouse, children or other claimant may have under Scots law.
In the event that the spouse or children have not been named as beneficiaries in the Will, legal advice should be sought before the estate is distributed.