When managing the affairs of someone who has died, you may be required to obtain Confirmation from the Sheriff Court in order to administer their estate. Confirmation is the legal authority by which the appointed Executors can ingather and distribute the funds in the estate in accordance with the terms of the deceased’s Will. Where the deceased died intestate (without a Will), the laws of intestate succession apply, as set out in the Succession (Scotland) Act 1964.
Confirmation can be required for a number of reasons, such as to complete the transfer or sale of the deceased’s house, ingather funds from bank accounts and encash or transfer investments or shares etc. In general terms, an estate may be categorised as either a “small estate” or “large estate”.
If the deceased’s assets are valued at £36,000 or less prior to the deduction of any debts or funeral expenses, it may be categorised as a small estate. The executor may need to compile an “Inventory” of all assets owned by the deceased and include a value of those assets as at the date of death. This is then submitted to the Sheriff Clerk along with the Death Certificate, C1 form and C5 form (for deaths prior to 1 January 2022 only). Where the estate is a “small estate”, the Executor can contact the local Sheriff Clerk’s office who can assist with the application for Confirmation.
A solicitor can be instructed by the Executor to prepare the Confirmation application for a small estate if preferred. It should be noted that the Sheriff Clerk will only assist an Executor with obtaining Confirmation for a small estate but will not carry out any investigative work, ingather the funds, pay any debts, prepare an Executry Account or administer the estate funds. This would be dealt with by the Executor unless a Solicitor was instructed.
A large estate is an estate where the deceased’s assets are valued higher than £36,000 prior to deduction of any debts or funeral expenses. Unlike small estates, the Sheriff Clerk’s office cannot assist with the Confirmation application of a large estate and instead will suggest the Executor seek assistance from a Solicitor.
As with small estates, the Executor of a large estate may need to prepare an inventory of all assets and their date of death value and submit this to the Sheriff Clerk along with the C1 and C5 form (again for deaths prior to 1 January 2022 only) where necessary. Where the large estate is valued higher than the nil rate band (NRB) threshold of £325,000, it may be liable to pay Inheritance Tax. https://bit.ly/3MCDOHpIn these circumstances, a full Inheritance tax return (IHT400 form) may need to be completed and submitted to HMRC.
When dealing with small estates, if the deceased did not have a Will, and if the Sheriff Clerk does not assist with the application, a Bond of Caution may be required. A Bond of Caution is a guarantee for the beneficiaries and creditors that the estate of the deceased will be administered correctly. The bond of caution is an insurance against someone applying for confirmation when they are not entitled to do so and against an executor failing to distribute the estate according to law. It is not an insurance policy that provides cover or protection to the Executor. If the Sheriff Clerk assists, a Bond of Caution is not required.
Where the deceased did not have a Will in a large estate, the person dealing with the administration of the estate would first of all need to Petition the Sheriff Court to be appointed as Executor before submitting any Confirmation application. A Bond of Caution would need to be obtained before submitting the Confirmation application (except where the estate is passing, in full, to a surviving spouse).
It should be noted that the role of Executor comes with a number of legal responsibilities https://bit.ly/3mxKpsb and therefore we always recommend you seek legal advice prior to the administration of an estate, small or large.
If you need any advice about executry administration, get in touch with Megan Hainey or the Blackadders’ Private Client Teams working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.