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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.
‘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...practical advice for times of bereavement, produced by the Scottish Government.
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.
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 etc. 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, we would recommend seeking legal advice. The Law Society of Scotland can provide contact details for solicitors in your area.
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 noted above in relation to small and large estates will apply. If they did not leave a will, 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. We would advise seeking legal advice in relation to this.
Forms and guidance notes for the small estate procedure can be found in the small estates section.
Forms and information for the large estate procedure can be found in the large estate section.
Applicants should note that for the above date of death, Form C5(SE)(2006) or Form C5(2006) do not require to be completed. In addition, where a claim to transfer unused nil rate band for excepted estates is to be made, Form IHT 217 is no longer required. Further information can be found at HMRC’s website here.
Any queries in relation to the changes to the excepted and/ or exempt estates provisions which came into force on 1 January 2022 (for deaths on or after that date) as a consequence of the Inheritance Tax (Delivery of Accounts) (Excepted Estates) (Amendment) Regulations 2021 should be directed to HMRC.
The form to be used is Form X-1 Confirmation ad non executa / ad omissa
An application can also be made to court where an asset was not included in the original inventory. To do this, you would need to complete a corrective inventory and the form to be used is Form C4(S). Further information can be accessed on the HMRC website.
The Scottish Courts and Tribunals Service staff are not legally qualified and therefore cannot provide you with any legal advice. If you do need to get legal advice, the Law Society of Scotland can provide contact details for solicitors in your area
The court will only have a copy of a will if confirmation has been issued by the court or if a will has been registered in the court. You can check if a will has been registered in a Scottish court (although this is uncommon nowadays) by contacting either your local sheriff court to where the deceased was domiciled or HM Commissary Office where specialised commissary procedures apply for foreign and no fixed or known domiciles. Access contact details.
A fee will be payable for obtaining a copy of a will, and the court can advise you of the fee that will be charged in your particular case.
Sometimes a will is registered in the Books of Council and Session, which are held by the Registers of Scotland.
See guidance notes and forms (above) for use when applying for confirmation (the Scottish equivalent to Probate) for a small estate (i.e. an estate which has a value up to and including £36,000). The sheriff clerk can help you complete the form for a small estate if you want them to, and you can arrange an appointment by contacting your local sheriff clerk’s office - access contact details.
The Scottish Courts and Tribunals Service is prohibited from assisting applicants for confirmation to large estates (i.e. estates exceeding £36,000). We would recommend seeking legal advice in these cases and contact details for solicitors in your area can be provided by the Law Society of Scotland.
You can find the forms and guidance notes to use when dealing with a large estate on the HM Revenues and Customs website.
Please note that where the death occurred on or after 1 January 2022, HMRC have issued revised forms and guidance which can be found at the above website address.
There is a useful guide produced by Scottish Government 'What to do after a death in Scotland...practical advice for times of bereavement', it contains some helpful advice about the role and responsibility of executors in Scotland.
In order to find out if Confirmation to the deceased’s estate has been granted, you should contact either:
If confirmation was issued prior to 1 January 1987, records will now be held by the National Records of Scotland (formerly the National Archives for Scotland).
If there is no record at the National Records, it may be that confirmation was issued on or after 1 January 1987. You can contact either your local sheriff court to where the deceased was domiciled or HM Commissary Office where specialised commissary procedures apply for foreign and no fixed or known domiciles - access contact details.
The fees for applying for confirmation will depend on the value of the estate and the number of certificates you need to provide for different banks, insurance companies etc. to allow them to release the funds. The current fees can be accessed in the Sheriff Court Fees section.
You should note that these fees do not include any fees you may need to pay if you have instructed a solicitor to help you. The solicitor can give you information on these costs.
You cannot apply for fee exemption when applying for confirmation unless the estate of the deceased person is exempt from inheritance tax by virtue of:
of the Inheritance Tax Act 1984 in which case there is no fee in respect of the inventory of that estate. However, fees for certificates, copies, etc. remain payable in these circumstances.
The Scottish Courts and Tribunals Service cannot provide you with any advice on making a will, however you will find some useful information on the Citizens Advice Scotland website.
Guidance notes and forms for use when applying for confirmation can be accessed on the HMRC website.
