If you have been appointed as an executor, you may have been informed that you need to obtain "grant of confirmation" (this is the Scottish equivalent of "probate" in England & Wales).
What is confirmation?
Confirmation is a legal document issued by the relevant Scottish Sheriff Court giving the executor(s) authority to uplift the deceased's assets (for example, a house, funds in a bank account, investments or some insurance policies) and administer and distribute these assets in accordance with the will (if there is one), or the law of intestacy (if there is no will).
When is confirmation needed?
In most cases, confirmation will be needed. However, there are some exceptions. For example, if the deceased held an asset jointly with someone else, the deceased's interest may automatically pass to the joint asset holder, although this is not always the case so the position here should always be carefully reviewed.
Similarly, depending on the values involved, the asset holder (e.g. banks) may be willing to distribute assets without seeing grant of confirmation. Pension death benefits also do not form part of the deceased's estate and will be distributed to the beneficiaries without confirmation being exhibited – the same can also be said for some insurance policies, particularly if they are written in trust.
There are no hard and fast rules to determine at the outset whether confirmation is needed – in most cases, the executors will need to investigate the position to clarify the requirements of each asset holder.
What is needed to apply for confirmation?
The information and forms needed to apply for confirmation depend on when the deceased died and if inheritance tax ("IHT") is payable on the deceased's estate. The application for confirmation will either comprise a single form C1 (if the deceased died after 1 January 2022) or a form C1 and C5 (if the deceased died before 1 January 2022 and IHT is not payable). In either case, if IHT is payable (and, in some cases, even if is not), the executors will firstly need to submit the relevant IHT return to HMRC and wait to receive an authorisation code before they can apply for confirmation.
As well as providing details of the deceased and executor(s), the application for confirmation includes a detailed inventory of the deceased's assets, including a value of these assets at the date of death. If IHT is payable, it will be necessary to obtain professional valuations of the deceased's assets e.g. the house and personal effects. If the deceased owned any properties, the inventory will also need to include a formal 'conveyancing description' of the property which we can assist with.
The application for confirmation is signed by one executor who must declare that the information included on the form is correct and complete to the best of his/her knowledge and belief so it is important that the executor is satisfied that full investigations have been made.
What is there is a mistake in the confirmation?
In some cases, an additional asset may be found after confirmation is granted and the executors may need to submit a form C4(S) corrective inventory (also known as an "eik"). In some circumstances, it may be necessary to send this form to HMRC before it is submitted to the Sheriff Court.
How long does it take to obtain confirmation?
The timescales will depend on various factors, including the number of assets in estate (this will determine the length of the initial investigation stage), and also the value of those assets and the beneficiaries of the estate, which will determine whether or not IHT is payable.
In a straightforward estate where IHT is not payable, it usually takes approximately 6-9 months to obtain confirmation. However, if IHT is payable, the executor(s) will need to pay the IHT to HMRC before applying for confirmation which can take approximately 2 – 3 months, if not longer.
Do I need a lawyer to assist with applying for confirmation?
The short answer is that it will depend on various factors. If the deceased's estate is below £36,000 (known as a 'small estate'), the Sheriff Clerk can assist with the completion of the forms. For estates above this threshold, the executor(s) will benefit from input from a lawyer.
In particular, the Scottish Courts & Tribunals Service issued very specific guidance in 2018 as regards the detail to be included in the declaration on the C1 and, to avoid errors and delays, a lawyer should check that the C1 complies with this guidance. If there is a property involved or foreign assets, it is essential to obtain legal assistance to ensure that these aspects of the estate are properly dealt with.
At Brodies, we are exceptionally well placed and happy to assist executors with the estate administration, whether that be dealing with all administration from start to finish, or assisting with the specific tasks, such as reviewing or preparing the application for confirmation. As ever, obtaining advice at any early stage is important, particularly as the deadline for payment of IHT is the end of the sixth month after the individual's death, after which point, interest will start to accrue.
For more information, please do not hesitate to contact a member of our executry team.
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