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To confirm, or not to confirm, that is the question

November 30, 2022

When someone dies there are many initial challenges facing the surviving family.  At what is already a difficult time, the death must be formally registered and funeral arrangements attended to (which may or may not be prepaid, depending upon whether the deceased left a “plan” in place).

Another early call that is often made is to the family solicitor to ascertain whether there is a Will or not and, depending upon the answer to that, to discuss the “next steps”.  Part of that initial discussion may include family members offering to take on the task of contacting the banks, building societies, companies and other financial institutions with whom the deceased held assets, along with the likes of the home insurance provider, utility companies etc.

Our experience tells us that whilst it may seem, on the face of it, to be a relatively easy task to undertake it can, in fact, be an extremely time-consuming and laborious process for those left behind.  It may well be the first time that the family has had to deal with such matters too.  Depending on the extent of the deceased’s estate and other relevant factors it may be that an application to the Court, known as an application for ‘Confirmation’ (called ‘Probate’ in England), is required.  Confirmation is the legal authority required by the Executor(s) (appointed either under the Will or, if there is no Will, by way of a “petition” to the Sheriff Court) to ingather and distribute the assets in the deceased’s estate.

In general terms, Confirmation is required when:

  • the deceased had an interest in heritable property when they died (i.e. they owned their home). If the deceased owned their property jointly with another person, and the title deed to the property does not contain what, in Scotland, is termed a “survivorship destination”, the Executor(s) will need to obtain Confirmation so that the property (or share of the property) may be transferred or sold;
  • the balance of funds held with an individual bank/building society exceeds the threshold which would allow them to release the funds without, firstly, seeing Confirmation of the Executor(s).  Each institution has its own separate threshold and sometimes this is different depending upon whether or not a solicitor is acting on behalf of the Executor(s) in winding the estate up.  The threshold may often be around £50,000 but it does, however, vary from bank to bank; and
  • the date of death value of life policies, Premium Bonds, shareholdings or investments are over a specific amount (which is, again, set by each individual company), then Confirmation may be required. Sometimes, companies may take a pragmatic view if no other asset in the estate requires Confirmation but this is solely at their discretion.  More often than not, if Confirmation is being obtained, a company will wish to see it. 

If Confirmation is required, and the total gross value of the estate is £36,000 or less, this is classed as a ‘small estate’ and the small estates procedure can be followed. Here, the Executor(s) may contact the Sheriff Clerk’s office for assistance in preparing the application for Confirmation. 

Confirmation may not be required when:

  • the deceased owned their property jointly with another person and the title deed to the property does contain a “survivorship destination”.  Here, the deceased’s interest in the property will automatically pass to the surviving owner without any Court application or formal legal conveyance; and
  • the deceased held only joint bank/building society accounts.  Once the death certificate has been exhibited, the bank/building society will generally update any accounts into the name of the surviving account holder.

There are, of course, many other circumstances where Confirmation must be sent to the Sheriff Court, or where a full inheritance tax return must be sent to H M Revenue & Customs (and, if appropriate any inheritance tax paid) before Confirmation may be applied for. 

If a loved one has recently passed away and you are not sure where to start, or what administrative work requires to be done, please contact our Executries Team and we would be pleased to assist in guiding you through the process.

If you need any advice or have any questions please contact a member of the Blackadders Executries Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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