Differences between Confirmation and Probate

What are the differences between Confirmation and Probate?

The documents the court issues to the executors of an estate is called probate in England where there is a valid Will in place. In Scotland probate is referred to as Confirmation, where the documents issued by the court provides the executors Will the legal authority to administer the estate. This document allows the executor to uplift the deceased assets from holders such as insurance companies and banks.

In Scotland the person who handles the estate is called the executor of the Will. If there is no will you have to apply to the court to have an executor appointed as executor dative and if the executor is named in the Will they are known as executor nominate. You can have many executors as you like in Scotland. When making a will many people will have a Legal Firm appointed as one of the executors, as executors can die leaving no one to administer the estate. Some executors will welcome the support and experience from a legal firm to help them administer the estate.

In England where there is no Will probate cannot be applied for. What happens is the next of Kin must apply for a grant of letters of administration in order to administer the estate. In England a maximum of four people can take a grant in respect of the same assets

So what are the real differences between probate in England and conformation in Scotland?

In Scotland confirmation basically transfers the estates assets to the executors to administer the estate subject to the terms of the Will. In England probate means the executors are entitled to deal with the assets only because they are named on the Will.

How do you apply for confirmation in Scotland?

Executors in Scotland apply to the courts for Conformation and use forms called C1 and C5 and the executor must include a complete list of the deceased worldwide assets together with the values along with the original Will which becomes a public document. In England, the only information that is public is the total value of the estate.

When confirmation has been granted the Court can provide a certificate of Confirmation for each asset. Asset holders will need to see the certificate of Confirmation prior to releasing the asset to the solicitor or executor.

Bond of Caution

Where a deceased dies intestate in Scotland the executors should obtain a Bond of Caution which is basically an Insurance Policy before confirmation can be obtained. There is no such requirement in England.

A Bond of Caution provides executors with protection if they fail to distribute the estate to beneficiaries according to Scottish Law. It only takes a few days to obtain a Bond of Caution and there are only specialist insurers in this market. The cost will depend upon the value of the estate. We can help you obtain a Bond of Caution policy.

Is an Estate liable to Inheritance tax different in both Scotland and England?

The tax situation regarding inheritance tax is exactly the same in both Scotland and England.

Estates with a net value over £325,000 (Nil Rate Band.) are liable to IHT of 40%. If you give away your family home to children or grandchildren your threshold can increase to £500,000. The Nil Rate Band is fixed at £325,000 but couples can transfer any unused Nil Rate Band when the first person dies to the survivor. This means you can double your nil rate band up to £650,000. So in essence you could be able to give away £825,000 of your estate before your beneficiary pay any inheritance tax.

What happens if I am Foreign Domiciled with assets in Scotland and England?

There is no liability to IHT if the assets are below £150,000 and the deceased was domiciled and lived abroad.