Scotland continues to attract international investors and second-home owners. However, without proper planning, owning assets here – such as a holiday home in the Highlands, a Scottish bank account, or shares in a Scottish company – can create unexpected complications.
The rules governing Scottish estates differ significantly from those in other jurisdictions, and even a carefully drafted foreign will may not be enough to avoid delays or additional costs after death. When it comes to succession, in Scotland the law of the deceased’s domicile governs the distribution of their worldwide moveable estate. However, Scots law will apply to any heritable property located in Scotland, regardless of where the deceased was domiciled. This distinction can lead to unintended consequences if planning is not aligned across jurisdictions. Careful cross-border estate planning is therefore essential to ensure your assets pass smoothly to your loved ones without unnecessary difficulties.
Scottish confirmation – what is it and why is it needed?
If you are not resident in the UK but own Scottish assets, there is a likelihood that confirmation in Scotland will still be required, even if probate (or its equivalent) has been obtained elsewhere.
Confirmation is a legal document issued by the Sheriff Court authorising the executor to deal with Scottish assets. Many institutions, such as banks and investment providers, will not release funds until confirmation is produced, and heritable property cannot be sold or transferred without it.
While certain legislation allows for the resealing of formal paperwork issued by a foreign court, the process of doing so can be protracted and is only available in specific circumstances.
The requirement of having to obtain confirmation in Scotland often comes as a surprise to non-residents, particularly where probate has been granted in their home country. Understanding this requirement early can help avoid delays and stress for your executors.
Using foreign wills in Scotland
A common question from non-residents is whether a foreign will alone can be used to administer Scottish assets. While a foreign will can form the basis of a confirmation application, the Sheriff Court will require additional documentation to prove its validity. This often adds complexity, delays, and extra costs.
Executors relying on a foreign will should anticipate needing:
- a certified translation of the will if written in a foreign language;
- a formal legal opinion from a lawyer qualified in the jurisdiction where the will was made, confirming its validity and explaining any differences from Scots law; and
- the original will being sent abroad for signing.
These requirements can be time-consuming and costly, particularly where multiple jurisdictions are involved.
Foreign executors and power of attorney
When an executor appointed under a foreign will is responsible for Scottish assets, they may face practical challenges, particularly if they are based overseas. In many cases, the executor can grant a power of attorney to a Scottish lawyer allowing them to act on the executor’s behalf in the confirmation process and in dealing with Scottish assets.
This approach can:
- mitigate international shipping issues as the executor does not need to sign original documents;
- ensure compliance with Scottish procedures, as the local lawyer can manage court applications and liaise with asset holders; and
- reduce delays, as documents can be prepared and lodged promptly.
Granting a power of attorney does not remove the executor’s responsibilities but provides a practical way to manage cross-border administration efficiently.
Intestate situations
If a non-resident dies without a will, an executor must be appointed in Scotland to administer Scottish assets. The person entitled to act as executor in Scotland may differ from who is entitled to act in that role under the deceased’s domicile law. Additional requirements often include:
- Producing the original grant or letters of administration (if issued abroad).
- Preparing and lodging a petition to appoint the executor in Scotland.
- Obtaining a bond of caution (insurance against executor error).
- Providing a legal opinion confirming who is entitled to act if no foreign grant exists.
Intestacy in Scotland is governed by the Succession (Scotland) Act 1964, as amended by the Succession (Scotland) Act 2016 and the Trusts and Succession (Scotland) Act 2024. This legislation set out a clear priority list of relatives entitled to inherit when someone dies without a will. Crucially, this framework applies to any heritable property located in Scotland, even if the deceased was not UK-resident. For moveable property, the law of the deceased’s domicile will govern succession. Because these rules can differ significantly from those in other jurisdictions, families can face unexpected outcomes if proper planning is not carried out.
Preparing a will in Scotland
To simplify administration, many clients choose to have separate wills for each jurisdiction where they hold assets. If you own Scottish assets but live abroad, a Scottish will can make the process far easier. Care must be taken to ensure multiple wills do not conflict with or revoke each other.
Inheritance tax considerations
UK inheritance tax (“IHT”) is residence-based. Anyone who has been UK-resident for at least 10 of the 20 previous tax years before death will have IHT applied to their worldwide estate.
For non-residents, IHT applies only to UK assets, including those in Scotland. This can lead to double taxation if your home country also taxes your estate on death. While the UK has some double taxation treaties, advice from lawyers in all relevant jurisdictions is essential to manage exposure.
Our team works with lawyers worldwide to provide tailored estate planning advice, including wills, inheritance tax planning, and executry administration. Our team can guide you through the complexities of Scottish confirmation and cross-border succession, ensuring your estate is managed efficiently and in line with your wishes. If you would like to discuss your options, please get in touch with one of our wills and estate planning lawyers.
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