How is probate in Scotland different to England?

• The process of going through probate is called Confirmation in Scotland, but both have the same overall aim: to administer a person’s estate after they die.
• Scotland has different inheritance laws, which mean spouses and children may be entitled to part of an estate regardless of what the will says.
• Whether you’re an executor in Scotland or England, Provira can help you access estate funds sooner with an Estate Advance if you are dealing with an illiquid estate.

If you’ve been reading about (and trying to understand) probate online, you may have noticed that Scotland seems to use different terminology and follows slightly different rules to England and Wales. 

Instead of applying for probate, executors in Scotland apply for Confirmation, and there are a few important differences between the two.

Although the two systems have the same goal, which include collecting the deceased’s assets, paying debts and distributing the estate to beneficiaries, they don’t always work in the same way.

Understanding those differences can make the process much easier, especially if the person who has passed away lived in Scotland, owned property there or had family members across different parts of the UK.

If you’re waiting for probate or Confirmation to complete and need access to funds sooner, Provira may be able to help. 

Our Estate Advance gives executors access to up to 50% of the net value of the estate, in order to help them pay estate expenses, debts and taxes faster.

To apply, speak to the team.

What is probate called in Scotland?

In Scotland, probate is called Confirmation.

Confirmation is the legal document that gives an executor the authority to deal with a deceased person’s estate. Although the name is different, it serves much the same purpose as a Grant of Probate in England and Wales.

Executors usually need Confirmation before they can:

• Access bank accounts
• Sell property
• Pay debts and taxes
• Distribute the estate to beneficiaries

Is Confirmation the same as probate?

Broadly speaking, yes. Both Confirmation and probate allow an executor to administer an estate after someone has died.

However, the legal systems in Scotland and England are different, which means the process, terminology and inheritance rules are not exactly the same.

The biggest differences relate to:

• The court that deals with applications
• The documents used
• Who inherits when there is no will
• The rights of spouses and children
• The responsibilities of executors

Which court deals with probate?

In England and Wales, probate applications are dealt with through the Probate Registry on behalf of the High Court. In Scotland, Confirmation applications are made to the local Sheriff Court.

In both systems, executors need to sign a legal document before being granted authority to act as an executor. In both countries, this is called a Statement of Truth.

Is a Grant of Probate called something different if there isn’t a will?

Yes. One of the biggest terminology differences is what happens when someone dies without leaving a will.

In England:

• If there is a will, executors apply for a Grant of Probate
• If there is no will, an administrator applies for Letters of Administration

In Scotland, the document issued is always called Confirmation, whether or not a will exists.

What happens if someone dies without a will?

The process is different depending on whether the deceased lived in Scotland or England.

In England, the closest eligible relative usually applies to become the estate’s administrator before they can deal with the assets. In Scotland, the Sheriff Court appoints an executor who can then apply for Confirmation.

In some Scottish estates where there is no will, the executor may also need to apply for a Bond of Caution before Confirmation is granted. This is a specialist insurance policy that protects beneficiaries and creditors from financial losses if the estate is not administered correctly.

There is no equivalent in England.

Who can inherit in Scotland?

This is one of the biggest legal differences. England generally follows the principle of testamentary freedom, meaning people are free to leave their estate to whoever they choose.

Scotland takes a different approach. Under Scottish law, spouses, civil partners and children may have legal rights, sometimes called forced heirship, even if there is a will.

This means they may be entitled to part of the deceased’s estate even if the will leaves them nothing.

These automatic inheritance rights do not exist in the same way in England and Wales.

Can anyone be an executor in England and Scotland?

The rules are also slightly different when it comes to who can be an executor in England and Scotland.

In Scotland:

• Executors must be at least 16.
• There is no legal limit on the number of executors.

In England and Wales:

• Executors must be at least 18.
• A maximum of four executors can act at the same time.

Does Inheritance Tax work differently in England and Scotland?

Not usually. Inheritance Tax is set by the UK Government, so the same basic tax rules generally apply throughout the UK.

The difference sits more in how estates are administered and the terminology used, rather than how Inheritance Tax is calculated.

Executors in both Scotland and England must still value the estate, report it to HMRC and pay Inheritance Tax before distributing assets to beneficiaries.

Does probate take longer in Scotland?

Not necessarily, in fact, generally, the timescales are quite similar. 

Simple estates can usually take just a few months to administer, while more complicated estates involving property, assets abroad, multiple beneficiaries or disputes can take a year or longer.

Whether the estate is being administered under Confirmation or probate, delays are often caused by:

• Property sales
• Inheritance Tax
• Missing paperwork
• Disputes between beneficiaries
• Complicated financial assets

What if the estate needs money before probate or Confirmation is complete?

One of the biggest challenges that executors in both Scotland and England face is that estate costs can often build up before money in the estate can be accessed to pay them.

Inheritance Tax, legal fees, funeral costs, insurance and property maintenance may all need to be paid while the estate’s money is still tied up in property or investments.

If you’re acting as an executor, Provira’s Estate Advance can provide access to up to 50% of the net value of the estate within days.

There are no monthly repayments, no personal liability and no credit checks. The advance is just repaid from the estate once administration has been completed.

To apply, speak to the team.

How Provira can help

Whether an estate is being administered in England or Scotland, the probate process can take time.

During that period, executors may need to pay estate expenses without having access to the cash to pay them.

At Provira, we understand how difficult that wait can be.

If you’re an executor, our Estate Advance can help you cover estate costs while probate or Confirmation is ongoing.

We offer:

• Quick access to up to 50% of the net value of the estate within days
• Simple interest, not compound interest
• No early repayment fees
• No personal guarantees

Whatever stage of the probate or Confirmation process you’re at, our experienced and compassionate team can explain your options and help you decide which solution is right for you.

Get in touch with the team today.