What is Probate?

“Probate” is an English term for a legal document from the Court that allows the Executor of the Will to deal with the deceased person’s estate.

Many people may be familiar with the term “Probate” however this is not used in Scotland. The correct term in Scotland is “Confirmation”.

What is an Executry?

This is the legal term that is used to describe the deceased’s persons estate after it has been passed to the Executor to administer and distribute.

In Scotland the law states that an Executor must be appointed to deal with the deceased person’s estate. This includes all assets and liabilities held by the deceased person as at date of death.

What is Confirmation?

Confirmation is a legal document that is issued by the Court in Scotland confirming that the Executor has the legal authority to distribute the deceased person’s estate.

What's Involved in applying for Confirmation?

In order to have Confirmation granted by the Court, an Executor must provide a list of all the deceased person's assets and liabilities as at the date of death along with the application for Confirmation. This list is known as the inventory. All assets and liabilities must be disclosed within the inventory.

There are some circumstances where Confirmation is not required. If you are unsure as to whether or not you require Confirmation, you should seek professional legal advice.

Once Confirmation has been granted, the Executor can then legally deal with the assets and liabilities held by the deceased person as well as distributing the estate.

Executors should be mindful that an estate should not be distributed until 6 months post date of death. However, we can make interim payments to the beneficiaries whilst winding up the estate.

The cost depends upon the size of the estate involved as well as the time involved in investigating the deceased persons estate and making the application for Confirmation.

You will be pleased to know we do not charge any upfront fees and any costs incurred can be taken from the estate at settlement.

What about Inheritance Tax (IHT)?

You should be aware that IHT is payable on the value of the deceased person’s estate at the date of their death. If the deceased person made any gifts or transfers during their lifetime, then these may also need to be declared and accounted for.

IHT will apply to estates that are valued at more than the Nil-Rate Band (the threshold). The current Nil-Rate Band is £325,000. IHT is charged at a rate of 40% on the chargeable value of the estate above the Nil-Rate Band, after taking into account the value of any chargeable lifetime transfers. The chargeable value is the value after deducting any liabilities, relief and exemptions that apply.

If the total estate is valued at more than the Nil-Rate Band, then Executors will be required to complete Inheritance Tax forms.

How long does it take to wind up an estate?

Applying for Confirmation can be a relatively complex process and therefore it is difficult to accurately predict the timescale.

The timescale for completion of an executry can depend on several different factors including the extent of the assets and liabilities, if there is a property to be sold, if there is a Will, if there are any Legal Rights claims, etc. You should be aware that foreign assets can also cause delays.

McEwan Fraser Legal can give you advice on dealing with a deceased person's estate. Our understanding and compassionate Private Client team are on hand to assist with the winding up of the Estate and aim to deal with the estate effectively and in a timely manner.

If you would like more information, then please do not hesitate to contact us on 0345 210 2121.

Note: This article is for information purposes only and does not constitute any form of advice or recommendations. You should seek proper professional advice from this firm before making any decisions.

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